NOT FOR PUBLICATION WITHOUT THE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conviction in an unpublished opinion, but remanded the matter for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