STATE OF NEW JERSEY VS. ANDY R. TORRES (13-02-0051, WARREN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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
2
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.
A-1259-19
3