STATE OF NEW JERSEY VS. JOSE L. REYES (84-11-1051, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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.A-2801-18
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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
A-2801-18
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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.
A-2801-18
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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
A-2801-18
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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
A-2801-18
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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
A-2801-18
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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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