NOT FOR PUBLICATION WITHOUT THE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-4602-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEMITRI NEIVES, a/k/a
DEMITRI R. NIEVES,
Defendant-Appellant.
________________________
Submitted January 3, 2022 – Decided January 31, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-10-
1430.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following the denial of his motion to suppress the sawed-off shotgun he
discarded as he and his two codefendants fled from a police officer, defendant
Demitri Neives pleaded guilty to second-degree certain persons not to have a
weapon, N.J.S.A. 2C:39-7(b)(1). The court sentenced defendant to a seven-year
prison term with a five-year period of parole ineligibility. Defendant appeals
from the order denying his motion to suppress the evidence, and his judgment
of conviction and sentence.
Defendant argues the court erred by denying his motion to suppress
because he was unlawfully seized by the police before he discarded the sawed-
off shotgun. Defendant's challenge to his sentence is primarily founded on the
claim that recently enacted mitigating sentencing factor fourteen, N.J.S.A.
2C:44-1(b)(14)—"[t]he defendant was under twenty-six years of age at the time
of the commission of the offense"—should be applied retroactively to the
imposition of his sentence because he was twenty-four when he committed his
offense. Alternatively, he argues the court erred by failing to consider the non-
statutory mitigating factor of his relative youth. Unpersuaded by defendant's
arguments, we affirm.
A-4602-19
2
I.
A grand jury returned a seven-count indictment charging defendant with
third-degree unlawful possession of a shotgun without a firearms purchaser
identification card, N.J.S.A. 2C:58-3, 2C:39-5(c) (count three); third-degree
unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count four);
fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count
five); first-degree possession of a shotgun by a person previously convicted of
robbery, N.J.S.A. 2C:58-3, 2C:39-5(c), and 2C:39-5(j) (count six); and second-
degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b)(1) (count
seven). The grand jury charged codefendants, Hussein Hussein and Justin
Aponte, in the same indictment with second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b) (counts one and two), and with fourth-degree
obstruction of the administration of law, N.J.S.A. 2C:29-1 (count five).
Defendants filed motions to suppress evidence—guns and clothing—
seized by Perth Amboy Police during the early morning hours of August 10,
2018. During a joint hearing on the suppression motions, Perth Amboy Police
Sergeant Pascal Medina, Jr. testified that at 2:05 a.m. on August 10, 2018, he
was on patrol in a marked policed car driving westerly on Market Street in Perth
Amboy. He observed "three individuals" walking westbound—in the same
A-4602-19
3
direction he drove—"wearing sweaters with their hoods over their heads," long
pants, and one with an orange shirt or scarf around his face.
Medina did not see anything in the hands of the three individuals, but he
considered their clothing unusual given the temperature and time. It was a "hot
August" morning and the driver's side window of Medina's patrol car was open.
As he passed the individuals, Medina slowed to "maybe ten miles an hour" and
the men made eye contact with him. Medina also heard a "large noise of
a . . . heavy object hitting the ground." Suspicious, Medina decided to make a
U-turn at the next intersection—at Market and 2nd Streets—to further observe
the three men.
The individuals watched Medina, and, as he began to make the U-turn,
they "began to run at a high pace—rate" in the opposite direction—easterly—
from which they had been walking. Medina watched the men run down Market
Street away from 2nd Street and towards 1st Street. Medina completed the U-
turn and began following the men as they ran. He was approximately half a
block away from them when they turned the corner onto 1st Street and continued
running. As they turned onto 1st Street, he saw them discard some of their
clothing as they ran.
A-4602-19
4
Medina sped up to close the distance between himself and the individuals
as they ran, but he did not activate his siren or lights or issue any commands as
he followed them. As he turned his patrol car onto 1st Street, Medina observed
the individuals split up. Defendant ran down the driveway of a 1st Street
residence and the codefendants ran down the driveway of another. At that point,
Medina lost sight of all of them.
Medina had "other patrolling units set a perimeter" around the area.
Defendant was found underneath the front porch of a residence. He was escorted
from the porch and secured. When asked why he ran, defendant said he had an
active warrant, but a subsequent check revealed that was not true.
After defendant was secured, Medina returned to Market Street where he
"believed [he] heard something hit the ground." He found a sawed-off shotgun
underneath a parked vehicle. After the shotgun was located, the codefendants
were taken into custody two blocks away. At the rear of the 1st Street residence
where Medina had seen the codefendants run down the driveway, a Glock
handgun, a revolver, and an orange shirt were recovered.
In a detailed bench opinion, the court found defendants were not seized
by the police when they began to run on Market Street and subsequently
discarded their clothes, the sawed-off shotgun, and two handguns that were
A-4602-19
5
recovered.1 The court found no seizure had taken place when Medina followed
defendants as they ran down Market Street and 1st Street. The court determined
that prior to defendants' discard of the seized evidence, Medina had not done
"anything that could . . . be characterized as a seizure. He was just there. And
they ran from him. And then he decided to follow them." The court also noted
defendants ran before Medina completed the U-turn and began to follow them,
and he never commanded them to stop, or activated the lights or siren on his
patrol car. The court found defendant was first seized by the police when he
was "pulled . . . out from under the porch[,]" but by that point "all the physical
evidence was jettisoned."
The court noted the distance between where defendant left the shotgun
and where he was found, and that the shotgun was left in a public place. The
court concluded defendant abandoned the shotgun. The court also determined
defendant had no reasonable expectation of privacy in the discarded evidence.
1
In part, the court relied on a surveillance video recording from Market Street
that showed defendants first walking westerly on Market Street and then turning
and running in the opposite direction toward 1st Street. The recording shows
one of the individuals holding a sawed-off shotgun, and, during his plea
proceeding, defendant testified he was the individual shown "on the camera
walking down the street with [the] sawed-off shotgun[.]"
A-4602-19
6
The court found defendants' abandonment of the evidence was not the
product of an unlawful seizure, and the evidence was abandoned before
defendant was seized by the police on 1st Street. The court determined there
were no grounds to suppress the evidence.
Although unnecessary to its denial of the suppression motion, the court
further found that even if Medina's actions constituted a seizure of defendant at
the time he discarded the shotgun, there were sufficient "particularized facts"
supporting a "reasonable and articulable suspicion" for a lawful investigatory
stop at that time. Thus, the court found suppression of the evidence was not
required because Medina had proper basis to conduct an investigatory stop of
defendants before they fled and discarded the evidence.
The court entered an order denying defendants' suppression motion.
Defendant subsequently pleaded guilty to second-degree certain persons not to
have a weapon—the sawed-off shotgun—in exchange for the State's
recommendation of a sentence not to exceed ten years with a five-year period of
parole ineligibility. On July 31, 2020, the court sentenced defendant to a seven-
year prison term with a five-year period of parole ineligibility.
More than two-and-a-half months later, on October 19, 2020, an
amendment to the sentencing guidelines under N.J.S.A. 2C:44-1 became
A-4602-19
7
effective immediately upon its adoption. L. 2020, c. 110 §1. The amendment
added an additional mitigating factor, N.J.S.A. 2C:44-1(b)(14), requiring
consideration of a defendant's youth as a mitigating factor if a "defendant was
under [twenty-six] years of age at the time of the commission of the offense."
As noted, defendant appealed from the court's order denying his
suppression motion, and from his conviction and sentence. Defendant presents
the following arguments for our consideration:
POINT I
BY CHASING A PEDESTRIAN DOWN IN POLICE
VEHICLES AND FORMING A PERIMETER TO
BLOCK HIS FREEDOM OF MOVEMENT,
OFFICERS ILLEGALLY SEIZED HIM WITHOUT
ANY CAUSE TO SUSPECT THAT HE HAD
COMMITTED A CRIME. THIS COURT SHOULD
THUS REVERSE THE DENIAL OF THE MOTION
TO SUPPRESS THE FRUIT OF THAT ILLEGAL
SEIZURE. U.S. Const., Amends. IV, XIV; N.J. Const.,
Art. 1, Par. 7.
POINT II
THE LAW REQUIRING SENTENCING
MITIGATION FOR YOUTHFUL DEFENDANTS
DEMANDS RETROACTIVE APPLICATION
BECAUSE THE LEGISLATURE INTENDED IT,
THE NEW LAW IS AMELIORATIVE IN NATURE,
THE SAVINGS STATUE IS INAPPLICABLE, AND
FUNDAMENTAL FAIRNESS REQUIRES
RETROACTIVITY. ADDITIONALLY, YOUTH
A-4602-19
8
SHOULD HAVE BEEN CONSIDERED AS A NON-
STATUTORY MITIGATING FACTOR.
A. The Legislature Intended Retroactive Application[.]
1. The Legislature did not express a clear intent for
prospective application only.
2. The other language of the mitigating factor
amendment indicates retroactive application; the
presumption of prospective application is
inapplicable; and the law is clearly ameliorative.
3. There is no manifest injustice to the State in
applying the mitigating factor retroactively[.]
B. The Savings Statute Does Not Preclude Retroactive
Application of the Ameliorative Legislative Changes,
Like the One at Issue Here.
C. Retroactive Application of the Mitigating Factor Is
Required as a Matter of Fundamental Fairness, and to
Effectuate the Remedial Purpose of the Sentencing
Commission’s Efforts Regarding Juvenile Sentencing.
D. Even If This Court Does Not Apply the Statutory
Mitigating Factor Retroactively, the Sentencing Court
Still Erred by Failing to Consider Youth as a Non-
Statutory Mitigating Factor.
II.
Defendant argues the court erred by denying his suppression motion
because he was unlawfully seized by Medina prior to his discard of the sawed-
off shotgun. He claims he was seized without the requisite reasonable and
A-4602-19
9
articulable suspicion of criminal activity and the seizure "caused [him] to
jettison personal property." He contends the court erroneously concluded he
was not seized "in the constitutional sense" by Medina's pursuit of him and his
codefendants.
When reviewing a trial court's denial of a motion to suppress physical
evidence, "our scope of review . . . is limited." State v. Ahmad, 246 N.J. 592,
609 (2021). We "must uphold the factual findings underlying the trial court's
decision so long as those findings are supported by sufficient credible evidence
in the record." Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Factual
findings of the trial court are given deference and should only be set aside when
those findings are "clearly mistaken." State v. Zalcberg, 232 N.J. 335, 344
(2018) (quoting State v. Hubbard, 222 N.J. 249, 262-63 (2015)). We owe no
such deference to a trial court's legal interpretations, which are reviewed de
novo. State v. Hathaway, 222 N.J. 453, 467 (2015).
The United States and New Jersey Constitutions guarantee that
individuals shall be free from "unreasonable searches and seizures." U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. "Generally, a warrantless . . . seizure is invalid
absent a showing that it 'falls within one of the few well-delineated exceptions
A-4602-19
10
to the warrant requirement.'" State v. Alessi, 240 N.J. 501, 517 (2020) (quoting
State v. Mann, 203 N.J. 328, 337-38 (2010)).
One exception to the warrant requirement is an investigative detention.
Id. at 517-18. Because an investigative detention is a temporary seizure, "it must
be based on an officer's 'reasonable and particularized suspicion' . . . that an
individual has just engaged in, or was about to engage in, criminal activity."
State v. Rosario, 229 N.J. 263, 272 (2017) (alteration in original) (quoting State
v. Stovall, 170 N.J. 346, 356, (2002)).
Where an investigative detention is not based on sufficient reasonable and
particularized suspicion, it is an "'unlawful seizure' and evidence discovered
during the course of an unconstitutional detention is subject to the exclusionary
rule." State v. Chisum, 236 N.J. 530, 546 (2019) (quoting Elders, 192 N.J. at
247 (2007)). The exclusionary rule generally requires the "suppression
of . . . evidence obtained improperly." State v. Smith, 212 N.J. 365, 388 (2012).
A seizure, in the form of an investigative detention, occurs "when 'an
objectively reasonable person' would feel 'that his or her right to move has been
restricted.'" Rosario, 229 N.J. at 272 (quoting State v. Rodriguez, 172 N.J. 117,
126 (2002)). "In determining whether a seizure occurred, a court must consider
whether 'in view of all of the circumstances surrounding the incident, a
A-4602-19
11
reasonable person would have believed that he [or she] was not free to leave.'"
Stovall, 170 N.J. at 355 (alteration in original) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). This determination requires an
objective consideration of the "totality of the circumstances surrounding
detention." Ibid.
Where property has been abandoned "a defendant will not have standing
to object to the search or seizure of" that property. State v. Johnson, 193 N.J.
528, 548-49 (2008). "For the purposes of standing, property is abandoned when
a person, who has control or dominion over property, knowingly and voluntarily
relinquishes any possessory or ownership interest in the property and when there
are no other apparent or known owners of the property." Id. at 549. However,
the Court has held that where items are discarded in response to an illegal
seizure, that evidence is not abandoned, and remains subject to suppression.
State v. Tucker, 136 N.J. 158, 172 (1994). As the Court explained in Tucker,
"[p]roperty is not considered abandoned when a person
throws away incriminating articles due to the unlawful
actions of police officers." Thus, where a person has
disposed of property in response to a police effort to
make an illegal arrest or illegal search, courts have not
hesitated to hold that property inadmissible.
[Ibid. (quoting 1 Wayne R. LaFave, Search and Seizure
§ 2.6(b), at 471-72 (2d ed. 1987)).]
A-4602-19
12
Measured against these principles, we discern no basis to reverse the
court's determination defendant was not seized prior to his discard of the sawed-
off shotgun. Medina's actions prior the defendant's discard of the gun on Market
Street did not create any circumstances in which "a person in such a situation
would [not] reasonably feel free to 'terminate the encounter.'" Id. at 166 (quoting
Florida v. Bostick, 501 U.S. 429, 439 (1991)).
Medina had not completed the U-turn in the patrol car when defendant and
his codefendants turned and ran on Market Street, and it was at that time
defendant discarded the shotgun. Prior to defendant's discard of the shotgun,
Medina had not activated the patrol car's lights or siren. He had not issued any
commands to defendants. He had not taken any action to restrict defendant's
movements. When defendant discarded the shotgun and ran, Medina had done
nothing more than drive his marked patrol car down the street and begin a U-
turn. Indeed, even after defendants turned and ran down Market Street and onto
1st discarding evidence, including the shotgun, clothes, and handguns later
recovered, Medina did nothing more than follow them in his patrol car. Medina
took no actions that would cause "'an objectively reasonable person' [to] feel
'that his or her right to move has been restricted.'" Rosario, 229 N.J. at 272
(quoting Rodriguez, 172 N.J. at 126). Thus, defendant was not seized by Medina
A-4602-19
13
when he discarded the shotgun on Market Street and ran with his codefendants
toward, and onto, 1st Street.
We are not persuaded by defendant's reliance on the Court's decision
Tucker in support of his claim he was unlawfully seized at the moment he
discarded the shotgun. In Tucker, the defendant sat on the curb at the rear of a
house when he saw a police car. 136 N.J. at 162. He "quickly stood up, turned
and started running through the yard toward the front of the propert y," and the
officer in the police car "immediately radioed a description of the fleeing
[defendant] to officers in [a] second patrol car." Ibid. When the defendant
reached the street at the front of the property, "the second patrol car intercepted
him." Ibid. An officer in the second patrol "began to pursue" the defendant,
who "turned around and ran back toward the rear of the yard." Ibid. As the
defendant ran back into the yard, he dropped a plastic bag containing drugs, and
was intercepted by an officer from the first police car, "who stopped him." Ibid.
The Court explained that given those circumstances, a seizure had
occurred because the actions of the police "would cause a reasonable person to
believe that the police wanted to capture him and not just to speak with him[,]"
and "a person in such a situation would [not] reasonably feel free to 'terminate
the encounter.'" Id. at 166 (quoting Bostick, 501 U.S. at 436). The Court also
A-4602-19
14
held the defendant's mere flight from the presence of the police, without more,
did not support a reasonable and articulable suspicion of criminal activity
permitting the seizure of defendant and, for that reason, the evidence the
defendant discarded following the seizure must be suppressed. Id. at 173.
The Court further noted that "[n]ot every police pursuit is a seizure," id.
at 167, and it cited Michigan v. Chesternut, 486 U.S. 567 (1988), as an example
of a police pursuit that did not result in a seizure. Tucker, 136 N.J. at 167. In
Chesternut, the United States Supreme Court considered whether a defendant
who stood, turned, "and began to run" when he saw a patrol car approaching,
had been seized when the patrol car caught up to him and drove alongside him
"for a short distance" as he ran. 486 U.S. at 569. The officers in the patrol car
observed the defendant discarding "a number of packets" pulled from his pocket
as they drove parallel to him. Ibid. Upon discovering the packets contained
drugs, the officers arrested the defendant for possession. Ibid.
The Court explained there was no evidence "the police activated a siren
or flashers; . . . commanded [the defendant] to halt, . . . displayed any weapons;
or that they operated the car in an aggressive manner to block respondent's
course or otherwise control the direction or speed of his movement[,]" and
concluded "this kind of police presence does not, standing alone, constitute a
A-4602-19
15
seizure." Id. at 575-76; see also State v. Hughes, 296 N.J. Super. 291, 297-98
(App. Div. 1997) (finding no seizure where a police officer in a patrol vehicle
merely followed the defendant as he rode his bicycle and discarded a bag of
drugs). The Court found the police "were not required to have 'a particularized
and objective basis for suspecting [the defendant] of criminal activity,' in order
to pursue him" because the conduct of the police did not result in a seizure.
Chesternut, 486 U.S. at 576 (quoting United States v. Cortez, 449 U.S. 411, 417-
418 (1981)).
Here, Medina had not even begun a pursuit when defendant discarded the
shotgun. Medina's actions prior to defendant's discard of the shotgun do not rise
to the level of the pursuits in Chesternut and Hughes, where it was determined
the actions of the police did not constitute a seizure. See ibid.; Hughes, 296 N.J.
Super. at 297-98. And, unlike the defendant in Tucker, defendant was not
"chased by a patrol car [and] also blocked in by other patrol cars and thus
trapped." Hughes, 296 N.J. Super. at 297; see also Tucker, 136 N.J. at 162.
Defendant did not have an encounter with Medina prior to his discard of the
shotgun. Defendant tossed the shotgun to the ground and ran at the mere sight
of Medina in his patrol car. The record lacks any evidence that at the time
defendant discarded the shotgun and ran, Medina had taken any action that
A-4602-19
16
"would . . . have communicated to a reasonable person an attempt to capture or
otherwise intrude upon defendant's freedom of movement," Hughes, 296 N.J.
Super. at 296, or would have caused "'an objectively reasonable person' [to] feel
'that his or her right to move has been restricted,'" Rosario, 229 N.J. at 272
(quoting Rodriguez, 172 N.J. at 126). The motion court correctly determined
defendant was not seized by the police prior to his discard of the shotgun.
We also agree with the court's finding defendant abandoned the shotgun.
The evidence supports the court's determination defendant "knowingly and
voluntarily relinquishe[d]" whatever possessory interest he may have had in the
shotgun when he discarded it in a public place on Market Street and fled at a
high rate of speed around the corner and down 1st Street. Johnson, 193 N.J. at
549. Because defendant was not unlawfully seized before he discarded the
shotgun on Market Street, defendant's discard of the gun constituted
abandonment. Tucker, 136 N.J. at 172. As a result of his abandonment of the
shotgun, defendant had "no right to challenge the search and seizure of that
property." Johnson, 193 N.J.at 548.
Accordingly, we affirm the court's order denying defendant's motion to
suppress the evidence he discarded on August 10, 2018. The record supports
A-4602-19
17
the court's findings of fact and legal conclusion defendant was not seized prior
to his abandonment of the evidence.2
III.
Defendant also challenges the court's imposition of sentence. He claims
the court erred by failing to consider his relative youth—he was twenty-four at
when he committed the offense—as a non-statutory mitigating factor in the
court's sentencing calculus. He also claims the matter should be remanded for
resentencing based on the enactment of mitigating factor fourteen, N.J.S.A.
2C:44-1(b)(14), "[t]he defendant was under [twenty-six] years of age at the time
of the commission of the offense." N.J.S.A. 2C:44-1(b)(14) became effective
on October 19, 2020, L. 2020, c. 110 §1, two-and-a-half months after defendant's
July 2020 sentencing, but he argues it should be given pipeline retroactivity and,
as a result, a remand is required for the court to consider the statutory mitigating
factor in its determination of defendant's sentence.
2
Because we are convinced defendant was not seized by the police prior to his
abandonment of the shotgun, it is unnecessary to address defendant's challenge
to the court's determination there was evidence supporting a reasonable and
articulable suspicion of criminal activity supporting an investigatory stop of
defendant at the time he discarded the shotgun and began running down Market
Street. We offer no opinion on the issue.
A-4602-19
18
Defendant pleaded guilty to second-degree possession of a weapon—a
sawed-off shotgun—in accordance with a plea agreement pursuant to which the
State agreed to recommend a sentence not to exceed ten years with a mandatory
five-year period of parole ineligibility. See N.J.S.A. 2C:39-7(b)(1) (providing
in part that the term of imprisonment of a person who has previously been
convicted of robbery and is subsequently convicted of unlawful possession of a
firearm shall include a minimum parole ineligibility term of five years). At
sentencing, the court found defendant had seven juvenile adjudications,
including three adjudications for probation violations, and three prior criminal
convictions: two for aggravated assault and one for robbery. The court also
noted defendant's substance abuse history, employment history, "ties to" a street
gang, marital status (single), and that he had no children.
The court found aggravating factor six, the extent and seriousness of
defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and aggravating factor nine,
the need to deter defendant and others from violating the law, N.J.S.A. 2C:44 -
1(a)(9). The court did not find aggravating factor three, the risk that defendant
will commit another offense, N.J.S.A. 2C:44-1(a)(3), because it accepted
defendant's statements that he regretted his involvement in the commission of
the offense; his participation in the commission of the offense was in part based
A-4602-19
19
on his loyalty to his street gang; and his declaration he decided he would have
no further involvement in the street gang "way of life" in the future. The court
did not find any mitigating factors and determined the aggravating factors
outweighed the mitigating factors.
The court imposed a sentence less than that authorized by the plea
agreement. The court noted defendant's representations that during the two
years he spent incarcerated following his arrest, he learned there was no loyalty
among members of a street gang, and he determined he would no longer
participate in a street-gang lifestyle. Based on defendant's representations, the
court believed defendant was a "person of [his] word" who did not "necessarily"
present "a risk of commission of another offense." Although the court found the
aggravating factors outweighed the mitigating factors, the court imposed a mid-
range seven-year term with the mandatory five-year period of parole
ineligibility.
Our review of a court's sentencing decision is "deferential." State v. Case,
220 N.J. 49, 65 (2014). A reviewing court "will not 'substitute [its] judgment
for that of the sentencing court.'" State v. Trinidad, 241 N.J. 425, 453 (2020)
(quoting State v. Fuentes, 217 N.J. 57, 70 (2014)). We will affirm a sentence
"if: (1) the trial court followed the sentencing guidelines; (2) its findings of fact
A-4602-19
20
and application of aggravating and mitigating factors were 'based upon
competent credible evidence in the record;' and (3) 'the application of the
guidelines to the facts' of the case does not 'shock[] the judicial conscience.'"
State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div. 2018) (alteration in
original) (quoting State v. Bolvito, 217 N.J. 221, 228 (2014)).
In the cases relied on by defendant, a defendant's relative youth has been
recognized as an appropriate, but not statutorily mandated, consideration in
sentencing. For example, in its review of an extended term sentence for a
twenty-two-year-old defendant, our Supreme Court noted the "defendant's
relative youth ordinarily would inure to his benefit in evaluating the choice of
[an] extended sentence." State v. Dunbar, 108 N.J. 80, 95 (1987). However, the
Court found consideration of the defendant's youth was tempered by his
resistance to "prior efforts at reform." Ibid. Although we have found a
defendant's youth is "not one of the delineated statutory mitigating factors," we
have noted a sentencing court's failure to give "consideration to [the] defendant's
youth."3 State v. Pindale, 249 N.J. Super. 266, 289 (App. Div. 1991). In State
v. Tanksley, we similarly suggested that on a remand for the resentencing of a
3
As we have noted, a defendant's youth under the age of twenty-six became a
statutory mitigating factor on October 19, 2019, with the enactment of N.J.S.A.
2C:44-1(b)(14).
A-4602-19
21
seventeen-year-old defendant on an aggravated manslaughter conviction, the
trial court should consider that the "defendant's relative youth would ordinarily
inure to his benefit in evaluating" the period of parole ineligibility imposed. 245
N.J. Super. 390, 397 (App. Div. 1991) (quoting Dunbar, 108 N.J. at 95).
The cases relied on by defendant were decided prior to the October 19,
2019 amendment to N.J.S.A. 2C:44-1(b) that added youth—under the age of
twenty-six—as a statutory mitigating factor. Addressing the version of N.J.S.A.
2C:44-1(b) extant when defendant was sentenced, the Court in State v. Zuber
explained there were "[c]ertain sentencing factors [in N.J.S.A. 2C:44-1(b)] that
touch[ed] on a defendant's youthful status," notably mitigating factor four,
N.J.S.A. 2C:44-1(b)(4), "[t]here was substantial grounds tending to excuse or
justify defendant's conduct, though failing to establish a defense," and
mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13), "[t]he conduct of a youthful
defendant was substantially influenced by another person more mature than the
defendant." 227 N.J. 422, 447 n.2 (2017). The Court, however, also found
"youth and its attendant circumstances . . . are not independently weighed as
statutory factors" under N.J.S.A. 2C:44-1(b). Ibid. Applying the version of
N.J.S.A. 2C:44-1(b) prior to its October 19, 2019 amendment, the Court in State
v. Rivera, ___ N.J. ___, ___ (2021) (slip op. at 21), found a defendant's youth
A-4602-19
22
"cannot support an aggravating factor" in a sentencing determination and that,
on the resentencing of the defendant who was eighteen years of age when she
committed her offenses, the sentencing court "is free to consider [the]
defendant's youth at the time of the offense" and apply other statutory mitigating
factors supported by the evidence.
Although a court has the "ability to use non-statutory mitigating factors in
imposing a sentence," State v. Rice, 425 N.J. Super. 375, 381 (App. Div. 2012),
defendant points to no authority mandating that sentencing court do so. Here,
defendant did not argue before the sentencing court that his relative age at the
time he committed the offense should be considered in mitigation of the sentence
to be imposed. And since consideration of defendant's relative youth was not a
mandatory sentencing factor under N.J.S.A. 2C:44-1(b) when defendant was
sentenced, Zuber, 227 N.J. at 447 n.2, the sentencing court had no independent
obligation to consider it in its sentencing determination, cf. State v. Dalziel, 182
N.J. 494, 504-05 (2005) (explaining where a statutory mitigating factor is
supported by credible evidence, it must be found and weighed by the court in
imposing sentence). We therefore do not consider the merits of defendant's
argument the sentencing court erred by failing to consider defendant's relative
youth at the time he committed the offense; defendant's relative youth as a non-
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statutory mitigating factor was not raised before the sentencing court, and the
issue does not "go to the jurisdiction of the trial court or concern matters of great
public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
We also observe that even if the sentencing court erred by failing to
consider defendant's relative age when he committed the offense, plaintiff failed
to demonstrate plain error requiring reversal of his sentence. Under that
standard, we disregard any error or omission by the trial court "unless it is of
such a nature as to have been clearly capable of producing an unjust result." R.
2:10-2.
Any consideration of defendant's relative youth when he committed the
offense at the age of twenty-four also required an assessment of defendant's
resistance to "prior efforts at reform." Dunbar, 108 N.J. at 95. On that score,
defendant performed badly. As the presentence report revealed, defendant has
seven juvenile adjudications, including three adjudications for violations of
probation and dispositions involving commitments to a youth detention facility.
Defendant consistently resisted each of those efforts at reform. After he became
an adult, defendant was convicted of three crimes, including two aggravated
assaults and one second-degree robbery, and he received state prison sentences
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as a result. Defendant further resisted those efforts at reforming his proclivity
for criminal conduct; within thirty days of his release from a five-year prison
sentence for robbery, he carried the sawed-off shotgun down Market Street in
Perth Amboy for which he was convicted and received the seven-year sentence
he challenges on appeal.
Given defendant's consistent resistance to efforts at reforming his conduct
through probation and punishment, we are convinced that any consideration that
might have properly been given to his relative youth as a mitigating factor would
not have affected the court's determination the statutory aggravating factors
outweighed the mitigating factors, see N.J.S.A. 2C:44-1(a) and (b), and would
not have altered the court's weighing of those factors such that the court
committed plain error by imposing the mid-range, seven-year sentence. Indeed,
the court's weighing of the aggravating and mitigating factors supported a
sentence above the mid-range seven-year term that was imposed. See State v.
Natale, 184 N.J. 458, 488 (2005) (explaining when a court weighs aggravating
and mitigating factors under N.J.S.A. 2C:44-1(a) and (b), "reason suggests," but
does not require "that when the mitigating factors preponderate, sentences will
tend toward the lower end of the range, and when the aggravating factors
preponderate, sentences will tend toward the higher end of the range"). Thus,
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we discern no basis to conclude that any minor benefit that might have inured
to defendant's benefit based on his relative youth would not have altered the
court's determination a mid-range seven-year sentence was appropriate and
well-supported by the record.
We find no error in the court's finding of the aggravating and mitigating
factors, or the court's weighing of the factors to support the sentence imposed.
Case, 220 N.J. at 65. Nor does defendant's sentence shock our judicial
conscience. Id. For those reasons, we are persuaded the court properly
exercised its discretion in imposing the challenged sentence.
Defendant also claims we should reverse his sentence and remand for
resentencing because the court is obligated to consider his relative youth as a
mandatory statutory mitigating factor under N.J.S.A. 2C:14-1(b)(14).
Defendant argues that although the amendment to N.J.S.A. 2C:44-1(b) was not
effective until two and a half months after his sentencing, it should be given
pipeline retroactivity and therefore requires a remand for resentencing.
"Pipeline retroactivity" is the retroactive application of a new law to a case that
is in the process of direct appeal, or pipeline, at the time the law became
effective. State v. G.E.P., 243 N.J. 362, 370 (2020).
A determination whether a statute applies retroactively "is a purely legal
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question of statutory interpretation." State v. J.V., 242 N.J. 432, 442 (2020)
(quoting Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)). In
making the determination, "[t]he overriding goal . . . 'is to determine as best
[this court] can the intent of the Legislature, and to give effect to that i ntent.'"
Id. at 442 (first alteration in original) (quoting State v. S.B., 230 N.J. 62, 67
(2017)). We must "look to the statute's language and give those terms their plain
and ordinary meaning." Ibid.; see Johnson, 226 N.J. at 386 (explaining "the best
indicator of that intent is the plain language chosen by the Legislature" (quoting
Cashin v. Bello, 223 N.J. 328, 335 (2015))). Where the terms are "clear and
unambiguous, then the interpretive process ends, and" this court must "apply the
law as written." Id. at 443 (quoting Murray v. Plainfield Rescue Squad, 210 N.J.
581, 592 (2012)). Where "the statutory text is ambiguous, we may resort to
'extrinsic interpretative aids, including legislative history,' to determine the
statute's meaning." Ibid. (quoting S.B., 230 N.J. at 68).
Our Supreme Court has found the Legislature's declaration that a statute
is "effective immediately" reflects a determination the statute shall have
prospective effect. For example, in Pisack v. B & C Towing Inc., the Court held
the Legislature's determination and declaration a statute shall be effective
immediately "bespeak[s] an intent contrary to, and not supportive of, retroactive
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27
application." 240 N.J. 360, 371 (2020) (quoting Cruz v. Cent. Jersey
Landscaping, Inc., 195 N.J. 33, 48 (2008)). Similarly, in State v. Parolin, the
Court held that amendments to the No Early Release Act, N.J.S.A. 2C:43-7.2
(NERA), removing the offense for which the defendant was convicted from
NERA's coverage, did not apply retroactively because the Legislature provided
the amendment would "take effect immediately." 171 N.J. 223, 233 (2002).
We may properly presume the Legislature was fully aware of judicial
interpretations of statutory language, N.J. Democratic Party, Inc. v. Samson, 175
N.J. 178, 195 n.6 (2002), and therefore the Legislature understood that,
consistent with the Court's decisions in Pisack and Parolin, making N.J.S.A.
2C:44-1(b)(14) "effective immediately" constituted a clear and unambiguous
declaration the amendment was prospective only. 4 See Pisack, 240 N.J. at 371;
Parolin, 171 N.J. at 233. "Thus, the Legislature is deemed to have been fully
aware that," if it sought to make application of mitigating factor prospective, it
should not have declared it effective immediately, and "should have expressly
provided for such application in the amendment's text." Olkusz v. Brown, 401
N.J. Super. 496, 502 (App. Div. 2008).
4
The Court decided Pisack on January 16, 2020, ten months before the
enactment of N.J.S.A. 2C:44-1(b)(14). 240 N.J. at 360. The Court decided
Parolin in 2002. 171 N.J. at 233.
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The statute also does not include any language suggesting an intent that it
apply prospectively or rendering its "effectively immediately" language
something other than the declaration of prospective application recognized in
Pisack and Parolin. See Olkusz, 401 N.J. Super. at 502 (noting "the Legislature's
silence on the question of retroactivity" in the face of canons of statutory
construction supporting prospective application "is akin to a legislative flare,
signaling to the judiciary that prospective application is intended").
For those reasons, we reject defendant's claim that mitigating factor
fourteen, N.J.S.A. 2C:44-1(b)(14), should be given retroactive application. The
clear and unambiguous language used by the Legislature, and as consistently
interpreted by our Supreme Court, does not permit an interpretation that the
amendment applies retroactively to individuals, like defendant, who were
sentenced prior to October 19, 2019. As we recently held in State v. Bellamy,
mitigating factor fourteen does not apply retroactively to sentences imposed
prior to the effective date of N.J.S.A. 2C:44-1(b)(14), and may properly be
applied only to sentencings, including re-sentencings following a remand on
appeal, occurring on or after N.J.S.A. 2C:44-1(b)(14)'s October 19, 2019
effective date. 468 N.J. Super. 29, 46-48 (App. Div. 2021).
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Because we find the clear and unambiguous language of the statutory
amendment does not permit retroactive application under the circumstances
presented here, see id. at 48, it is unnecessary to address defendant's remaining
arguments supporting its claim the statute should be applied retroactively, see
J.V., 242 N.J. at 443 (explaining a court's interpretation of a statute ends where
the statute's terms are clear and unambiguous).
Affirmed.
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