STATE OF NEW JERSEY VS. NICHOLAS KIRIAKAKIS(11-04-0877, BERGEN COUNTY AND STATEWIDE) ( 2017 )


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  •                       NOT FOR PUBLICATION WITHOUT THE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-3061-15T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    NICHOLAS KIRIAKAKIS,
    Defendant-Appellant.
    __________________________
    Argued March 29, 2017 – Decided August 28, 2017
    Before Judges Fuentes, Simonelli and Carroll.
    On appeal from Superior Court of New Jersey, Law
    Division, Bergen County, Indictment No.
    11-04-0877.
    Frank P. Lucianna argued the cause for
    appellant   (Lucianna   &    Lucianna,   P.A.,
    attorneys; Mr. Lucianna, of counsel and on the
    brief; Paul F. Darakjian, on the briefs).
    Elizabeth R. Rebein,        Assistant Prosecutor,
    argued the cause for        respondent (Gurbir S.
    Grewal, Bergen County       Prosecutor, attorney;
    Ms. Rebein, of counsel      and on the brief).
    PER CURIAM
    Defendant Nicholas Kiriakakis was tried before a jury on
    various dates commencing on October 23, 2012.         On December 13,
    2012, the jury found defendant guilty of second degree conspiracy
    to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1);
    and third degree hindering apprehension, N.J.S.A. 2C:29-3b(4).1
    On May 10, 2013, the trial judge sentenced defendant to a term of
    eight years with four years of parole ineligibility on the charge
    of second degree conspiracy, consecutive to a term of five years
    with two and one-half years of parole ineligibility on the charge
    of third degree hindering apprehension.          This resulted in an
    aggregate sentence of thirteen years with six and one-half years
    of parole ineligibility.    The judge also imposed a maximum fine of
    $150,000.
    On defendant's direct appeal, this court upheld defendant's
    conviction in an unpublished opinion, but remanded the matter for
    resentencing   without   consideration   of   aggravating   factor   one,
    N.J.S.A. 2C:44-1a(1).    See State v. Kiriakakis, No. A-3061-15T2
    1 The jury acquitted defendant on two counts of first degree
    murder, N.J.S.A. 2C:11-3a(1) and (2); one count of second degree
    possession of a firearm for an unlawful purpose, N.J.S.A. 2C:394a;
    and one count of second degree possession of a handgun without a
    permit, N.J.S.A. 2C:39-5b.
    2                             A-3061-15T2
    (App. Div. Aug. 31, 2015) (slip op. at 3, 27).                   On November 2,
    2015,    Judge    Susan   J.     Steele 1 followed   our   instructions      and
    conducted a resentencing hearing at which the attorneys were
    permitted    to   file    new    sentencing   memoranda    and    present   oral
    argument concerning defendant's sentence.
    On March 15, 2016, Judge Steele sentenced defendant to a term
    of eight years with four years of parole ineligibility on the
    conviction of second degree conspiracy, consecutive to a term of
    four     years    on    the     conviction    of   third   degree     hindering
    apprehension.      This resulted in an aggregate term of twelve years
    with four years of parole ineligibility. Judge Steele also imposed
    a fine of $150,000.       Judge Steele found aggravating factors three,
    five, and nine, see N.J.S.A. 2C:44-1a, as well as mitigating
    factors seven and eight, see N.J.S.A. 2C:44-1b.            She explained the
    basis for her findings and conclusions of law in a comprehensive
    thirty-two page memorandum of opinion dated February 22, 2016.
    Because she did not preside over defendant's trial, Judge Steele
    included a thorough recitation of the evidence presented by the
    State that led to defendant's conviction.
    Defendant raises the following arguments on appeal:
    POINT I:
    1 Judge Steele did not preside over defendant's trial or impose
    defendant's original sentence.
    3                              A-3061-15T2
    N.J.S.A. 2C:43-6(b) VIOLATES THE SIXTH AMENDMENT TO THE
    UNITED STATES CONSTITUTION.
    a.   N.J.S.A. 2C:43-6(b) violates Blakeley
    [sic] v. Washington, 
    542 U.S. 296
     (2004).
    b.   N.J.S.A. 2C:43-6(b) violates Alleyne v.
    United States, ___ U.S. ___, 
    133 S. Ct. 2151
     (2013).
    c.   The Court Below Erred By Disregarding
    Blakely v. Washington and misapplying Alleyne
    v. United States.
    POINT II:
    THE RE-SENTENCING JUDGE ERRED IN IMPOSING A FINE.
    We reject these arguments and affirm substantially for the
    reasons expressed by Judge Steele in her memorandum of opinion
    dated February 22, 2016. We add only the following brief comments.
    When we remanded this matter for resentencing, we expressly limited
    the scope of the resentencing hearing:
    In short, we find no basis to support aggravating factor
    one.
    The   balance    of   defendant's     arguments,
    including   the     argument    attacking    the
    imposition of consecutive sentences, lack
    sufficient     merit   to     warrant    further
    discussion.     R. 2:11-3(e)(2). Defendant's
    conviction is affirmed.      We remand for the
    court   to    resentence   defendant     without
    consideration of aggravating factor one,
    N.J.S.A. 2C:44-1(a)(1).
    [State v. Kiriakakis, supra, slip op. at 27.]
    4                           A-3061-15T2
    Judge Steele acknowledged this limitation in her memorandum
    of opinion.   However, despite that defendant's arguments exceeded
    the limited scope of our remand and were subject to summary
    rejection under the doctrine of res judicata, Judge Steele decided
    to address them.   We will follow Judge Steele's lead out of respect
    for the time and effort she dedicated to this case.
    At the resentencing hearing, defendant argued, inter alia,
    that a judge's imposition of parole ineligibility at a sentencing
    hearing pursuant to N.J.S.A. 2C:43-6b is unconstitutional under
    Alleyne v. United States, ___ U.S. ___, 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
     (2013).   N.J.S.A. 2C:43-6b provides as follows:
    As part of a sentence for any crime, where the
    court   is   clearly    convinced   that   the
    aggravating factors substantially outweigh
    the mitigating factors, as set forth in
    subsections a. and b. of [N.J.S.A.] 2C:44-1,
    or the court finds that the aggravating factor
    set forth in paragraph (5) of subsection a. of
    [N.J.S.A.] 2C:44-1 applies, the court may fix
    a minimum term not to exceed one-half of the
    term set pursuant to subsection a., or one-
    half of the term set pursuant to a maximum
    period of incarceration for a crime set forth
    in any statute other than this code, during
    which the defendant shall not be eligible for
    parole; provided that no defendant shall be
    eligible for parole at a date earlier than
    otherwise provided by the law governing
    parole.
    [(Emphasis added).]
    5                         A-3061-15T2
    Defendant's constitutional challenge to N.J.S.A. 2C:43-6b is
    facially specious.       In Alleyne, the United States Supreme Court
    held that the imposition of a mandatory minimum sentence based
    upon a fact not submitted to the jury for determination beyond a
    reasonable doubt violates a criminal defendant's Sixth Amendment
    right to a jury trial.      Alleyne, 
    supra,
     
    133 S. Ct. at 2155
    , 
    186 L. Ed. 2d at 321
    .         The imposition of parole ineligibility under
    N.J.S.A. 2C:43-6b, by contrast, is discretionary and based upon
    the traditional aggravating and mitigating factors a trial judge
    must use to fashion an appropriate term of imprisonment.                Our
    Supreme Court has "upheld the constitutionality of statutes that
    allow    judges     to impose   mandatory-minimum   parole   ineligibility
    terms within the sentencing range authorized by the jury verdict."
    State v. Abdullah, 
    184 N.J. 497
    , 509 (2005) (citations omitted).
    Finally, defendant's reliance on State v. Grate, 
    220 N.J. 317
    (2015), is misplaced.       In Grate, the Court expressly declined to
    decide the constitutionality of N.J.S.A. 2C:43-6b and other aspects
    of the Graves Act.       
    Id.
     at 335 n.2.
    Affirmed.
    6                           A-3061-15T2
    

Document Info

Docket Number: A-3061-15T2

Filed Date: 8/28/2017

Precedential Status: Non-Precedential

Modified Date: 8/28/2017