State v. Zarate
| Decision Date | 06 May 2020 |
| Docket Number | DOCKET NO. A-2001-17T3 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES C. ZARATE, a/k/a NAVAJAS ZARATE, Defendant-Appellant. |
| Court | New Jersey Superior Court – Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-02-0262.
Alyssa A. Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alyssa A. Aiello, of counsel and on the briefs).
John K. McNamara, Jr., Chief Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; John K. McNamara, Jr., on the briefs).
Lawrence S. Lustberg argued the cause for amicus curiae the American Civil Liberties Union of New Jersey (Gibbons, PC, and American Civil Liberties Union New Jersey Foundation, attorneys; Lawrence S. Lustberg, Avram D. Frey and Alexander Shalom, on the brief).
Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae the Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
This appeal, along with the back-to-back appeals of State v. Ricky Zuber (A-2677-18), and State v. James Comer (A-1230-18) decided today, raises Eighth Amendment constitutional challenges to lengthy sentences imposed on juveniles tried as adults for very serious offenses.
Building upon prior decisions that struck down sentencing schemes that did not allow for consideration of the ways in which juvenile offenders differ from adult offenders, the United States Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), declared unconstitutional under the Eighth Amendment mandatory life imprisonment without parole for a juvenile sentenced as an adult.
Our State Supreme Court in State v. Zuber, 227 N.J. 422 (2017), applied Miller to any sentence imposed on a juvenile-aged offender that was thefunctional equivalent of a life sentence without parole. The Court in Zuber required sentencing judges to consider the five factors set forth in Miller that distinguish juvenile offenders from adult offenders. Zuber also required sentencing judges to apply the guidelines in State v. Yarbough, 100 N.J. 627 (1985), on consecutive sentencing, with a "heightened" level of care whenever a juvenile faces a lengthy aggregate sentence. 227 N.J. at 450.
As for the present case, in July 2005 defendant James Zarate1 committed several atrocious offenses as a minor, including the murder of a teenage girl, the mutilation of her dead body, and an attempt to discard a footlocker and bag containing her remains off a bridge into a river. Zarate was age fourteen at the time.
Pursuant to the juvenile waiver statute that was then in effect, Zarate was tried as an adult. A jury found him guilty of, among other things, murder, desecration of human remains, hindering apprehension, and illegal possession of a weapon.
The judge who presided over Zarate's trial sentenced him in 2009 to life imprisonment subject to an 85% parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, plus consecutive nine-year and four-yearterms, respectively, on desecration and weapons counts.
After a series of procedural events we will describe in more detail, in 2017 the State Supreme Court remanded Zarate's case to the trial court for resentencing, in light of its opinion in Zuber and for application of the constitutional Miller factors.
At that resentencing hearing in November 2017, the trial court found the Miller factors generally weighed against defendant, but it revised the life sentence to a custodial term of fifty years subject to the NERA parole disqualifier. The net impact of the resentencing was to reduce Zarate's first eligibility for parole after he serves about 43 years, when he will be approximately age 57. This appeal followed.
As a threshold matter, Zarate argues he is no longer subject to an adult sentence under Title 2C because the Legislature's 2015 revision of the juvenile waiver statute raising the minimum waiver age to fifteen applies retroactively to his case. He does not contest his adjudication of guilt, but requests that he now be resentenced by a judge in the Family Part, where the maximum term for the juvenile equivalent of murder is twenty years.
Alternatively, if we decline to adopt his retroactivity argument, Zarate contends the trial court in 2017 failed to correctly apply the Miller factors to him, and that he is entitled to be resentenced again.
For the reasons that follow, we affirm Zarate's present sentence. We do so without foreclosing his ability at some unspecified future time to move for a reduction of his sentence, if he demonstrates, through conduct and new evidence, a realistic likelihood for rehabilitation that would make the continued imposition of his full sentence violative of the Miller factors.
We reject Zarate's contention that he is entitled to the retroactive application of the 2015 amendment of the juvenile waiver statute, because his conviction was final, and his sentence was first imposed and he began to serve it many years before the amendment's effective date.
We have already described the gruesome factual background of this case in an unpublished decision we issued in 2012. State v. Zarate, No. A-0070-09 (App. Div. 2012). We incorporate here by reference that background, with the following brief summary.
On Friday July 29, 2005, Zarate went to visit for the weekend the home of his father and stepmother, where his older brother Jonathan and stepsiblings lived. (slip op. at 4). Initially, after Zarate's parents had separated, Zarate and Jonathan both lived with their father. Id. at 11. This changed in 2003 after Zarate, who was in "the same remedial classes at school" with J.P. (the sixteen-year-old murder victim) "teased and picked on" J.P. Ibid. J.P. lived with herparents next door to Zarate's father. Id. at 4.
After J.P.'s mother complained to the school and told Zarate to leave J.P. alone, she found her car window shattered from a brick. Ibid. Zarate was charged as a juvenile, but the complaint was later dismissed, and Zarate was forced to live with his mother. Ibid. He spent alternating weekends at his father's home. Id. at 4. J.P.'s mother testified that after Zarate moved to his mother's house, he did not bother J.P. again. Ibid.
Two years after the move, on Sunday July 31, 2005, J.P.'s parents reported J.P. missing. Id. at 4. Later that day, police saw a jeep stopped at the side of a Passaic River bridge and Zarate, Jonathan, and V.B. attempting to throw a footlocker and two trash bags over the bridge. Ibid. Inside the footlocker police found part of J.P.'s body from her head to her knees. Id. at 5. One trash bag contained her lower legs, and the other contained a bandana, a T-shirt, sandals and blood-stained paper towels. Ibid.
Zarate did not testify at trial, but according to his police statement, which was admitted into evidence, J.P. came to their father's house at Jonathan's request, and when she arrived, Zarate went to sleep in another room. Id. at 12. He awoke when he heard "big thumps." Ibid. Jonathan told Zarate that he had hit J.P. with a doorstop, stabbed her, placed a bandana in her mouth to muffle her screams, and cut off her legs because they did not fit inside the footlocker.Id. at 12-13. He asked Zarate to help place the footlocker inside their father's jeep to dispose of it. Id. at 12-13.
Initially, V.B. denied any role in the murder and attempt to conceal evidence. Id. at 12. He then claimed that he only helped the brothers attempt to dispose of the evidence. Ibid. Later, he said Jonathan had told him that Jonathan had killed J.P., and he made no mention of Zarate. Ibid. Eventually, V.B. said that Jonathan and Zarate admitted to killing J.P., Zarate by stabbing her, and Jonathan by punching her. Ibid.
According to the medical examiner, J.P. had been stabbed multiple times in the neck, legs, and hands. Id. at 6-7. She had been punched multiple times in the head and had been struck repeatedly in the back with an object, later identified as a metal pole. Id. at 6. The examiner believed that "at least two people" had attacked her and that she had attempted to fight off the person facing her while another person struck her from behind. Id. at 7-9. The cause of death was suffocation from vomit and blood, which resulted from a severe blow to the back. Id. at 8-9.
During a search of the bedroom Zarate and Jonathan shared, police found a metal pole and a knife inside the pocket of a pair of jeans. Id. at 6-7. Police found J.P.'s blood and Zarate's DNA on the jeans. Id. at 6-7, 21. They also found J.P.'s blood on the pole. Id. at 6. The medical examiner testified that theblade of the knife was consistent with the stab wounds on J.P.'s body. Id. at 7.
The State theorized that Zarate had a motive to kill J.P. as a result of the bullying incident two years earlier, which resulted in his relocation to his mother's house. Id. at 11.
These events occurred when Zarate was ten days' shy of turning fifteen years of age.
In March 2009, a grand jury indicted Zarate on the following nine counts relating to the July 2005 homicide:
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