State v. Zuber

• Decision Date: 11 January 2017
• Citation: 227 N.J. 422,152 A.3d 197
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ricky ZUBER, Defendant-Appellant. State of New Jersey, Plaintiff-Appellant, v. James Comer, Defendant-Respondent.

227 N.J. 422

152 A.3d 197

STATE of New Jersey, Plaintiff-Respondent,

v.Ricky ZUBER, Defendant-Appellant.

State of New Jersey, Plaintiff-Appellant,

v.James Comer, Defendant-Respondent.

Supreme Court of New Jersey.

Argued October 27, 2016

Decided January 11, 2017

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant in State v. Ricky Zuber(Joseph E. Krakora, Public Defender, attorney).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant in State v. James Comerand for respondent in State v. Ricky Zuber(Carolyn A. Murray, Acting Essex County Prosecutor, attorney; LeeAnn Cunningham and Andrew R. Burroughs, Special Deputies Attorney General/Acting Assistant Prosecutors, on the briefs).

Lawrence S. Lustberg argued the cause for the respondent in State v. James Comer(Gibbons, attorneys; Mr. Lustberg, Avram D. Frey, and Alexander R. Shalomon the brief).

Alexander R. Shalomargued the cause for amicus curiae American Civil Liberties Union of New Jersey in State v. Ricky Zuber(Edward L. Barocas, Legal Director, and Gibbons, attorneys; Mr. Shalom, Lawrence S. Lustberg, and Avram D. Frey, on the brief).

Joseph A. Glyn, argued the cause for amicus curiae Attorney General of New Jersey in State v. Ricky Zuberand State v. James Comer(Christopher S. Porrino, Attorney General, attorney).

Jonathan Romberg submitted a brief on behalf of amicus curiae Seton Hall University School of Law Center for Social Justice in State v. Ricky Zuber.

James I. McClammy submitted a brief on behalf of amicus curiae Fair Punishment Project in State v. James Comer(Davis Polk & Wardwell, attorneys).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The defendants in these appeals committed very serious, violent crimes when they were juveniles. One is serving a sentence of 110 years' imprisonment and will not be eligible for parole until he spends 55 years in jail. At that time, he would be about 72 years old. The second is serving a 75–year term and is ineligible for parole until he serves 68 years and 3 months in jail. He would be 85 years old then. Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released—longer than the time served by some adults convicted of first-degree murder.

When the sentences were originally imposed in these cases, the trial judges did not consider defendants' age or related circumstances. In the past decade, the United States Supreme Court has sent a clear message in that regard: "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. Miller v. Alabama , 567 U.S. ––––, 132 S.Ct. 2455, 2460, 2469, 183 L.Ed. 2d 407, 414, 424 (2012).

The Supreme Court recognized "the mitigating qualities of youth" and directed that judges in those cases consider a number of factors at sentencing, including immaturity and "failure to appreciate risks and consequences"; "family and home environment"; family and peer pressures; "an inability to deal with police officers or prosecutors" or the juvenile's own attorney; and "the possibility of rehabilitation." Id. at ––––, 132 S.Ct. at 2467–68, 183 L.Ed. 2d at 422–23.

We find that the same concerns apply to sentences that are the practical equivalent of life without parole, like the ones in these appeals. The proper focus belongs on the amount of real time a juvenile will spend in jail and not on the formal label attached to his sentence. To satisfy the Eighth Amendment and Article I, Paragraph 12 of the State Constitution, which both prohibit cruel and unusual punishment, we direct that defendants be resentenced and that the Miller factors be addressed at that time.

We also recognize that the imposition of consecutive sentences on multiple counts of conviction often drives the outcome at sentencing. We conclude 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. See State v. Yarbough , 100 N.J. 627, 498 A .2d 1239 (1985). In short, judges should exercise a heightened level of care before they impose multiple consecutive sentences on juveniles which would result in lengthy jail terms.

Finally, to stave off possible future constitutional challenges to the current sentencing scheme, we ask the Legislature to consider enacting a statute that would provide for later review of juvenile sentences that have lengthy periods of parole ineligibility. We note that a number of States have already done so.

We remand both cases for resentencing.

I.

Defendant Ricky Zuber participated in two separate gang rapes in November and December 1981, when he was seventeen years old. In the first, he and others forced a woman at knife-point to drive to a nearby cemetery, where the group raped her repeatedly and threatened her with disfigurement. Afterward, the group abandoned the woman naked in the cemetery. In the second incident, Zuber and others abducted a sixteen-year-old high school student, drove her to an unknown location, and raped her repeatedly. Zuber was the "ringleader" of both assaults.

Zuber was charged as an adult in two separate indictments. After two trials, two juries convicted Zuber on a total of ten counts. In 1983, the judge who presided over both trials sentenced Zuber, in the aggregate, to 150 years in prison with a 75–year period of parole ineligibility. Under Zuber's initial sentence, he would not have become eligible for parole until about 2056, when he would be 92 years old.

The Appellate Division affirmed the sentences. In 1988, this Court summarily remanded the sentences to the trial court for reconsideration under Yarbough . State v. Zuber , 111 N.J. 643, 546 A .2d 553 (1988) ; State v. Zuber , 111 N.J. 650, 546 A. 2d 559 (1988). On remand, the trial judge sentenced Zuber as follows for the gang rape committed in November 1981:

(1) 20 years' imprisonment with 10 years of parole ineligibility for first-degree kidnapping, N.J.S.A. 2C:13–1(b)(1) ;(2) a consecutive term of 10 years' imprisonment with 5 years of parole ineligibility for second-degree robbery, N.J.S.A. 2C:15–1 ;

(3) a second consecutive term of 20 years' imprisonment with 10 years of parole ineligibility for first-degree aggravated sexual assault by vaginal penetration, N.J.S.A. 2C:14–2 ; and

(4) a concurrent term of 20 years' imprisonment with 10 years of parole ineligibility for first-degree aggravated sexual assault by anal penetration, N.J.S.A. 2C:14–2 —which the court had originally imposed as a consecutive term.

The aggregate sentence for the November 1981 offense was 50 years' imprisonment with 25 years of parole ineligibility.

For the gang rape in December 1981, the court on remand imposed the following sentence:

(5) 20 years' imprisonment with 10 years of parole ineligibility for first-degree kidnapping, N.J.S.A. 2C:13–1(b)(1) ;

(6) a consecutive term of 20 years' imprisonment with 10 years of parole ineligibility for first-degree robbery, N.J.S.A. 2C:15–1 ;

(7) a second consecutive term of 20 years' imprisonment with 10 years of parole ineligibility for first-degree aggravated sexual assault by vaginal penetration, N.J.S.A. 2C:14–2 ;(8) a concurrent term of 20 years' imprisonment with 10 years of parole ineligibility for first-degree aggravated sexual assault by anal penetration, N.J.S.A. 2C:14–2 —which the court had originally imposed as a consecutive term;

(9) a concurrent term of 20 years' imprisonment with 10 years of parole ineligibility for first-degree aggravated sexual assault by oral penetration, N.J.S.A. 2C:14–2 ; and

(10) a concurrent term of 5 years' imprisonment for third-degree unlawful possession of a knife, N.J.S.A. 2C:39–4(d).

The aggregate sentence for the December 1981 offense was 60 years' imprisonment with 30 years of parole ineligibility.

The judge ordered that the sentences for both sets of offenses run consecutively, which resulted in a total sentence of 110 years in prison with 55 years of parole ineligibility. The Appellate Division affirmed the sentences. Under his revised aggregate sentence, Zuber will not be eligible for parole until about 2036, when he would be about 72 years old.¹

In 2010, Zuber filed a pro se motion and argued that his revised sentence was unconstitutional under Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010), in which the Supreme Court held that sentencing a juvenile to life without parole for a non-homicide offense violates the Eighth Amendment. The trial court denied relief, and the Appellate Division affirmed. State v. Zuber , 442 N.J.Super. 611, 614–15, 126 A .3d 335 (App. Div. 2015).

The appellate panel assumed but did not decide that Graham could apply to consecutive sentences that resulted in a term "equaling or exceeding the life expectancy of a person of defendant's age." Id. at 625, 126 A .3d 335. As part of its analysis, the panel used life-expectancy tables issued by the federal government to predict that Zuber would outlive his parole ineligibility period by about eight years. Id. at 627–30, 126 A .3d 335. The panel did not use tables "based on sex, race, or ethnicity," which it believed "would introduce disparities that are inconsistent with constitutional standards and penological goals." Id. at 633, 126 A .3d 335.

The Appellate Division concluded that Zuber's sentence did not violate Graham . Id. at 634, 126 A .3d 335. The panel explained that Zuber's "fifty-five years before parole eligibility is not the functional equivalent of life without parole, because it gives him a meaningful and realistic opportunity for parole well within the predicted lifespan for a person of [his] age." Id. at 614–15, 126 A .3d 335.

We granted Zuber's petition for certification. 224 N.J. 245, 130 A .3d...