NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3354-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IBN ALI ADAMS,
Defendant-Appellant.
Submitted February 24, 2025 – Decided March 7, 2025
Before Judges Sabatino and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0231.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).
Theodore N. Stephens II, Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Deputy Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM This appeal stems from the outcome of a so-called "look-back" sentencing
hearing conducted by the trial court pursuant to State v. Comer, 249 N.J. 359
(2022). Although the "look-back" court substantially reduced defendant's
aggregate sixty-seven-year sentence to a thirty-year term, he argues the court
should have reduced his sentence even further.
For the reasons that follow, we conclude the trial court's determination at
the look-back hearing was fair and supported by the record, and therefore reject
defendant's claim that he deserved a greater reduction. However, with the State's
consent, we remand the matter to the trial court for the limited purpose of
correcting apparent clerical errors in the judgment of conviction that do not
affect the validity or reasonableness of the revised thirty-year sentence.
I.
We summarize the pertinent facts and procedural history. In 2003 a jury
found defendant Ibn Adams guilty of felony murder, multiple robberies, and
other related offenses. He committed these offenses at the age of seventeen
along with codefendants who included James Comer. Defendant, a juvenile
offender, had been waived to be tried as an adult.
A-3354-21 2 Following the jury verdict, in March 2004 the trial court imposed on
defendant an aggregate sentence of 67 years, with a 60.5-year parole disqualifier
under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
The conviction and sentence were affirmed on direct appeal by this court
and, thereafter, in an opinion by the Supreme Court. State v. Adams, A-4915-
03 (App. Div. Dec. 28, 2006), aff'd, 194 N.J. 186 (2008). Defendant
unsuccessfully pursued a petition for postconviction relief ("PCR"), the denial
of which we affirmed in 2011. State v. Adams, A-0459-10 (App. Div. June 20,
2011).
In its 2022 opinion in State v. Comer, our Supreme Court fashioned a
"look-back" remedy to comport with Eighth Amendment principles that
recognize the general immaturity of youthful offenders and the difficulty of
sentencing courts in predicting their capacity for rehabilitation decades later.
249 N.J. at 394-95. The remedy provides certain juvenile offenders who had
been tried as adults and who received long sentences an opportunity, after
serving twenty years, to apply to the trial court to demonstrate they have been
sufficiently rehabilitated to have their sentences constitutionally shortened. Id.
at 403. The Court specified that the most a thirty-year mandatory minimum
sentence for murder may be shortened is to twenty years. Ibid.
A-3354-21 3 Taking advantage of the Comer look-back process, defendant requested
and was provided with a resentencing hearing in April 2022. The hearing was
presided over by the same judge who had sentenced him originally.
Defendant presented testimony from two witnesses at the hearing
addressing his progress towards rehabilitation. He presented expert testimony
from Dr. Roger Harris, M.D., who is board certified in adult psychiatry and
forensic psychiatry. Among other things, Dr. Harris opined that defendant's
"maturation was [] profoundly hindered" by his upbringing. Defendant also
presented lay testimony from one of his aunts, Wajihah Al-Khudair, who
recounted defendant's difficult upbringing, which included his state removal
from his mother, the loss of his father, and a chaotic home environment with his
caregiver aunt. The State did not call any witnesses, but instead relied on
defendant's documented criminal history and institutional history in prison.
On June 7, 2022, the trial court issued its resentencing decision, greatly
shortening defendant's original sentence. The court imposed the same
mandatory minimum sentence of thirty years for the felony murder, but this time
ordered all other sentences to run concurrently. This modification produced an
aggregate sentence of thirty years, with thirty years parole ineligibility, reducing
defendant's sentence by thirty-seven years.
A-3354-21 4 As part of its resentencing analysis, the trial court again merged counts
one, four, six, nine, and twelve of the indictment. With respect to the non-
merged counts, the court again found that aggravating sentencing factors three
(risk of reoffense), N.J.S.A. 2C:44-1(a)(3), and nine (the need for deterrence),
N.J.S.A. 2C:44-1(a)(9), pertained. However, this time the court applied the
recently-enacted mitigating sentencing factor fourteen (being under twenty-six
years of age at the time of the offense), N.J.S.A. 2C:44-1(b)(14), as a
justification for the lowered aggregate sentence. The court also reexamined the
consecutive aspects of the original sentence and concluded that under the
principles of State v. Yarbough, 100 N.J. 627, 643 (1985) and its progeny that
concurrent sentences were now appropriate.
Defendant now appeals his revised sentences, principally arguing that it
inadequately considers the so-called "Miller factors" of mitigation for juvenile
offenders set forth by the United States Supreme Court in Miller v. Alabama,
567 U.S. 460, 477-78 (2012). He advocates for an additional ten-year reduction
of his felony murder sentence down to twenty years. The State has not cross-
appealed the revised sentence, asserting it is a fair and generous modification of
the original sentence.
In his brief on appeal, defendant presents the following points:
A-3354-21 5 POINT I
THE RESENTENCING COURT FAILED TO CONSIDER AND APPLY THE TOTALITY OF THE MILLER EVIDENCE PRESENTED, WHICH DEMONSTRATED THAT ADAMS IS NO LONGER AN OFFENDER WHO FAILS TO APPRECIATE RISKS AND CONSEQUENCES BUT RATHER HAS MATURED AND BEEN REHABILITATED. THE FINDINGS OF AGGRAVATING AND MITIGATING FACTORS WERE ALSO NOT BASED ON COMPETENT, CREDIBLE EVIDENCE IN THE RECORD. FOR THESE REASONS, THIS COURT MUST REMAND FOR RESENTENCING.
POINT II
THE TRIAL COURT FAILED TO APPRECIATE THAT DEFENDANT HAD A "TWICE DIMINISHED CAPACITY" BECAUSE HIS ONLY HOMICIDE CONVICTION WAS FOR FELONY MURDER.
POINT III
THE MATTER MUST BE REMANDED FOR RESENTENCING FOR THE FURTHER REASON THAT DEFENDANT RECEIVED AN EXCESSIVELY DISPARATE SENTENCE AS COMPARED TO HIS "SIMILARLY SUFFICIENT" CODEFENDANTS, RENDERING THE SENTENCE UNLAWFUL.
Having considered these points in light of the record and the applicable
law, we conclude that no further reduction of defendant's sentence is warranted .
A-3354-21 6 II.
We consider defendant's arguments guided by familiar principles of
appellate review of sentencing decisions. In determining the appropriate
sentence to be imposed on a defendant, the sentencing court is to consider the
codified aggravating and mitigating factors identified at N.J.S.A. 2C:44-1(a) and
(b), balance them, and explain how the sentence was determined so that the
reviewing court will have an adequate record to review on appeal. State v. Case,
220 N.J. 49, 65 (2014); State v. Fuentes, 217 N.J. 57, 73 (2014).
If the trial court adheres to these sentencing guidelines, the sentence it
imposes should be modified only if it "shock[s] the judicial conscience." State
v. Roth, 95 N.J. 334, 364 (1984). As the Court instructed in State v. Bieniek,
200 N.J. 601, 612 (2010), when the trial court follows "the sentencing principles
set forth in the Code and defined in our case law, its discretion should be immune
from second-guessing. We grant to it the deference to which it is entitled under
our traditional principles of appellate review of a criminal sentence."
In the present context of resentencing, we are further guided by the
constitutional principles set forth in Miller, 567 U.S. at 477-78 (2012) and our
Supreme Court's application of the Miller factors in Comer, 249 N.J. at 387, and
State v. Zuber, 227 N.J. 422, 453 (2017), to juvenile offenders who receive long
A-3354-21 7 adult sentences. Our Supreme Court has distilled the "Miller factors" as follows:
"[(1)] [the] defendant's 'immaturity, impetuosity, and failure to appreciate risks
and consequences'; [(2)] 'family and home environment'; [(3)] family and peer
pressures; [(4)] 'inability to deal with police officers or prosecutors' or his own
attorney; and [(5)] 'the possibility of rehabilitation.'" Zuber, 227 N.J. at 453
(quoting Miller, 567 U.S. at 477-78).
The Court held in Zuber that a sentencing judge must consider the Miller
factors when sentencing a juvenile to a lengthy period of parole ineligibility. Id.
at 447. It also held that a judge must consider the Miller factors in tandem with
the state-law sentencing principles set forth in Yarbough, 100 N.J. at 643-44,
when imposing consecutive sentences upon juvenile offenders. Zuber, 227 N.J.
at 449-50. The Court also recognized that the aggregate impact of consecutively
imposed sentences must be considered when applying the Miller factors, bearing
in mind the real-world practical expectation of when such an offender with
consecutive aggregate sentences might be eligible for parole. Id. at 450.
Our Supreme Court has recognized that "even when judges begin to use
the Miller factors at sentencing," some juveniles may appropriately receive long
sentences with substantial periods of parole ineligibility, "particularly in cases
A-3354-21 8 that involve multiple offenses on different occasions or multiple victims." Id.
at 451.
In fashioning the look-back process in Comer to advance these
constitutional principles, our Supreme Court directed that resentencing—one
that considers all the Miller factors and the "totality of the evidence"—is
necessary where a juvenile has served more than twenty years and was sentenced
pursuant to the mandatory sentencing provision for murder. 249 N.J. at 403.
When assessing an appropriate sentence for juveniles who commit serious
offenses, the pivotal consideration is "whether the juvenile offender still fails to
appreciate risks and consequences, and whether he has matured or been
rehabilitated." Id. at 370. "After assessing the relevant evidence, the trial court
. . . has the authority to impose a period of parole ineligibility of less than 30
years, but not less than 20 years." Id. at 406 (emphasis added).
The Court made clear in Comer that the decision to impose a lesser
sentence is one of discretion:
After evaluating all the evidence, the trial court would have discretion to affirm or reduce the original base sentence within the statutory range, and to reduce the parole bar to no less than 20 years. A juvenile who played a central role in a heinous homicide and then had a history of problematic behavior in prison, and was found to be incorrigible at the time of the later hearing, would be an unlikely candidate for relief. On the other
A-3354-21 9 hand, a juvenile who originally acted in response to peer pressure and did not carry out a significant role in the homicide, and who presented proof at the hearing about how he had been rehabilitated and was now fit to reenter society after two decades, could be an appropriate candidate for a lesser sentence and a reduced parole bar.
[Id. at 370-71.]
We are unpersuaded that the trial court misapplied its discretion in
resentencing defendant and in greatly reducing his original sixty-seven-year
aggregate term. It is readily apparent that the trial court's application of the
Miller factors and other sentencing considerations was fair and sound.
A.
We first examine, ad seriatim, defendant's arguments concerning the
court's application of the Miller factors.
Miller Factor One: Defendant's Immaturity, Impetuosity, and Failure to Appreciate Risks and Consequences
Miller recognized that deterrence does not work where a defendant's
"immaturity, recklessness, and impetuosity . . . make them less likely to consider
potential punishment," invalidating deterrence as a justification for lengthy
sentences when applied to youth who acted with these qualities. 567 U.S. at
472.
Defendant asserts this factor was conclusively evidenced. Dr. Harris
A-3354-21 10 testified that "the maturation of the prefrontal cortex at age 16, 17 is immature
and you are not able to weigh the risks, you are not able to tamp down on your
impulsivity, that you're not able to look at the future . . . [nor] weigh all the
consequences." He testified additionally that "[defendant's] maturation was . . .
profoundly hindered" by his upbringing.
The resentencing court duly recognized that the "hallmarks of youth
manifested themselves in defendant's conduct in this case." The court
appropriately applied mitigating factor fourteen, further reflecting its fair
consideration of youth as a factor in calculating defendant's updated sentence.
N.J.S.A. 2C:44-1(b)(14).
Miller Factor Two: Defendant's Family and Home Environment
Miller recognized that there is diminished culpability where a defendant
"lack[ed] the ability to extricate [himself] from horrific, crime-producing
settings." 567 U.S. at 471.
The defense elicited proof at the hearing that defendant's biological
mother used crack and heroin and "resorted to prostitution to support her
addictions." When defendant was the age of two, youth services removed him
from his mother's care and placed him with an aunt. His home environment with
that aunt was allegedly "chaotic." The record suggests that the aunt drank
A-3354-21 11 heavily and had many intermittent house guests, one of whom allegedly
attempted to molest defendant. Additionally, when defendant was around eight
years old his father was killed in a bar shooting.
While throughout his childhood he received food, clothes, shelter, and was
able to attend school and participate in extra-curricular activities, the defense
argued, through Dr. Harris's testimony, that defendant received little emotional
support at home. However, Al-Khudair testified that she and one of her other
sisters who lived with the defendant loved and nurtured him and made sure he
was provided for.
In resentencing defendant, the court found this factor to be applicable:
Defendant describes his childhood as marred by separation, abuse, neglect, rejection and criminal modeling. His mother was an addict and unable to care for him, resulting in him being removed from the home. His father was murdered and he was raised by his paternal aunt. Defendant was raised by his aunt throughout his childhood. Defendant's family was involved in drug using and drug dealing. His brother had a criminal history as well as a history of using drugs. While defendant initially claimed to be—to being raised in a good neighborhood, he was exposed to criminal life from an early age.
....
This Court finds that the defendant grew up in an environment that fostered criminal behavior. The
A-3354-21 12 reality of criminal behavior as a way of life was inescapable for the defendant.
Because competent, credible evidence in the record adequately supports
that defendant's home environment made his actions less deserving of
punishment, the court's application of Miller factor two was not an abuse of
discretion.
Miller Factor Three: Defendant's Family and Peer Pressures
Miller recognized that children "'are more vulnerable . . . to negative
influences and outside pressures,' including from their family and peers" and
that "a child's character is not as 'well formed' as an adult's" and so that "his
actions are less likely to be 'evidence of irretrievabl[e] deprav[ity]'" that justify
longer sentences. 567 U.S. at 460 (alterations in original).
Dr. Harris testified that at the time of the events "[defendant] [was] on a
quest to be seen and be affirmed" and that "it would [have been] very difficult
for him to say no when those around him [were] recruiting him."
In resentencing defendant, the court considered this factor and found that
"[d]efendant states and the [c]ourt accepts that he was at an impressionable age
and may have acted under some influence or pressure from [his codefendants]."
Because the record adequately supports the application of Miller factor
three, its application presents no abuse of discretion.
A-3354-21 13 Miller Factor Four: Defendant's Inability to Deal with Police Officers or Prosecutors or His Own Attorney Miller instructed sentencing courts to consider whether a defendant
"might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth" such as "his ability to deal with police
officers or prosecutors (including on a plea agreement) or his incapacity to assist
his own attorneys." Id. at 477-78. It further held that where a defendant
struggled due to such difficulties, the judge may consider reducing his sentence.
Id. at 478-80.
Here, Dr. Harris opined that when offered a plea agreement before trial
defendant did not have the capacity to "weigh whether [taking the deal] was a
good decision or not" because it was for twenty to twenty-five years, an "amount
of years [that was] longer than he [had been] alive at that moment." Defendant
did not offer any other evidence supporting this factor.
The resentencing court did not find this Miller factor was demonstrated.
The court specifically determined "[t]here's no evidence in the record, except
for defendant's current submissions, that indicate he did not work with his prior
counsel or had an inability to assist counsel." The court's finding in this regard
is adequately supported by the record.
A-3354-21 14 Miller Factor Five: The Possibility of Rehabilitation
Miller recognized that "incorrigibility is inconsistent with youth" and that
rehabilitation removes the justification for lengthy sentences as applied to
youthful, changeable, offenders. Id. at 473. In this regard, Dr. Harris testified
that defendant "falls within that group of individuals that [certain research] has
shown to be desistors of criminal activity," meaning an adolescence-limited
offender. To support this, defendant highlighted defendant's completion of
various programs while in prison such as "anger management," "cognitive
behavioral change," and "twelve steps." Defendant also highlighted that in 2006
he renounced his gang membership and became a Muslim.
Defendant further argued through Dr. Harris's testimony that he
experienced personal growth as the result of suffering a serious injury while
playing basketball in 2017.
In response, the State highlighted that defendant received six sanctions
while in prison: (1) in 2011, defendant was sanctioned for possessing a weapon,
a shank; (2) in 2012, he was sanctioned for refusing to submit to a jail search;
in 2020 he was given three sanctions, (3) for testing positive for a banned
substance, (4) for possessing alcohol, and (5) for possessing tobacco; and (6) in
2021, he was sanctioned for the use of narcotic paraphernalia and drugs. The
A-3354-21 15 State submitted that these multiple disciplinary infractions reflect that defendant
had not matured and remained unable to follow societal rules.
In resentencing defendant, the court considered this factor, and gave it
limited weight:
The Court finds that the defendant has been involved in several disciplinary proceedings over the years of incarceration. They were not denied by the defendant. Defendant states he's no longer affiliated with any gangs and has gotten involved in programs at the prison. The most recent incidences occurring within the last two to three years appear to relate to drugs.
The defendant has shown some ability to be rehabilitated, but has not been even recently free from incident. His involvement earning certificates at the prison indicates an understanding of the consequences of his previous actions.
The record adequately supports the court's decision to give only some
weight to the defendant's rehabilitation; it presents no abuse of discretion.
Summary Concerning the Miller Factors
The record clearly demonstrates the resentencing qualitatively considered
each Miller factor and applied those factors that were fairly supported by the
evidence: factors one, two, three, and (to a limited extent) five. There was no
abuse of discretion in the court's application of the Miller factors.
A-3354-21 16 B.
We likewise reject defendant's argument that the resentencing court
abused its discretion in considering the pertinent factors for consecutive
sentences under Yarbough and related case law. In fact, the court greatly
reduced defendant's aggregate sentence by having his sentences all run
concurrently.
The court considered "the findings under Yarbough in light of the Miller
factors" and decided not to impose consecutive sentences when resentencing:
"This [c]ourt finds that while there were four separate robberies and a separate
homicide, all the crimes occurred in one spree throughout a single evening on
April 17th, 2000." "The crimes and their objects were not predominantly
independent of each other, and the crimes were committed so closely in time
and place as to indicate a single period of aberrant behavior." However, the
court noted that "[a]lthough the crimes indicate a single period of aberrant
behavior, the convictions are numerous."
The court decided to impose concurrent sentences after viewing the crimes
in light of Miller: "[D]efendant was a juvenile at the time. He grew up in an
environment where criminal behavior was acceptable and could not extricate
himself from his environment. Over his years of incarceration, defendant has
A-3354-21 17 shown some ability to be rehabilitated."
The court therefore adhered to the Supreme Court's guidance in Comer in
converting defendant's consecutive sentences to concurrent ones, based on the
distinctive record presented here.
C.
Defendant claims the resentencing court ignored evidence of other
statutory mitigating factors when it found that "no mitigating factors other than
the Miller factors and factor fourteen apply to defendant's re-sentencing." We
disagree. There was no abuse of discretion in the court's decision to apply only
mitigating factor fourteen and aggravating factors three and nine. N.J.S.A.
2C:44-1.
Defendant specifically argues that he "did not contemplate serious harm"
and that the resentencing court erred in not applying mitigating factor two,
N.J.S.A. 2C:44-1(b)(2). The proofs at the resentencing hearing do not support
this contention. Dr. Harris did not testify that defendant did not intend to cause
serious harm through his multiple offenses. His testimony did assert that
defendant was young and generally not aware consequences that would flow
from his actions, but the court adequately took that into account in applying the
mitigating factor for youthful offenders under the age of twenty-six. N.J.S.A.
A-3354-21 18 2C:44-1(b)(14).
Invoking mitigating factor eight, defendant argues that his conduct was
"the result of circumstances unlikely to recur" and that the resentencing court
erred in not applying this factor. N.J.S.A. 2C:44-1(b)(8). The record strongly
points in the other direction. The resentencing court rightly noted that defendant
had been adjudicated as a juvenile ten times before the offenses for which he
was convicted. No other evidence was provided to show that defendant would
not reoffend. The court did not abuse its discretion in finding mitigating factor
eight inapplicable.
Turning to mitigating factor nine, defendant argues that his "character and
attitude . . . indicate that he is unlikely to commit another offense" and that the
resentencing court erred in not applying this factor. N.J.S.A. 2C:44-1(b)(9).
This argument is likewise unavailing. Although the court found that defendant
was partially rehabilitated, it recognized that he "has not been even recently free
from incident." As already noted, defendant had been sanctioned six times while
in prison, with the most recent disciplinary offenses occurring within a year of
the resentencing. There were ample grounds for the court to reject mitigating
factor nine.
Finally, involving mitigating factor thirteen, defendant argues his conduct
A-3354-21 19 "was substantially influenced by another person more mature than the
defendant" and that the resentencing court erred in not applying this factor.
N.J.S.A. 2C:44-1(b)(13) (emphasis added). The resentencing court accepted
that defendant was subject to some pressure from his co-defendants in weighing
Miller factor three, but did not find the evidence supported finding that the
influence was substantial enough to give weight to statutory mitigating factor
thirteen. It reasonably decided not to apply factor thirteen because "there's no
evidence in the record that the defendant was not a willing participant in the
crimes."
This decision is adequately supported by the record. Dexter Harrison
testified that defendant wanted to continue robbing after the death of George
Paul and that defendant was the one who selected at least one of the victims.
Nothing in the record shows that defendant was substantially pressured to take
part in the robberies; instead, there is ample evidence that defendant was a
willing participant. The court did not abuse its discretion in choosing not to
apply mitigating factor thirteen.
As for the aggravating factors, defendant argues the resentencing court
erred in applying aggravating factor three because Dr. Harris testified that
defendant was not likely to reoffend. He also argues that the court erred in not
A-3354-21 20 elaborating its reasons sufficiently for applying factor three.
We reject these contentions of error. The resentencing court did refer to
and rely upon aggravating factor three, the risk of committing another offense,
in tandem with aggravating factor nine, the need for deterring the defendant and
others from violating the law. The court stated those aggravating factors
"continue to apply and they are applied to the defendant's re-sentencing." That
conclusion is adequately supported by the record and is buttressed by the court's
rejection of mitigating factors eight and nine.
The trial court noted that defendant was adjudicated as a juvenile ten
separate times prior to the present matter and that no evidence was provided to
show that defendant would not reoffend other than the expert's assertion. It also
recognized that defendant had been sanctioned six times while in prison, with
the most recent offenses occurring shortly before the hearing. The record thus
provides sufficient competent, credible evidence that defendant posed a risk of
reoffending and required deterrence, and that aggravating factor three was
applicable.
D.
Defendant's final two points argue that his revised sentence should be
further reduced because (1) his sole homicide conviction for felony murder
A-3354-21 21 reflects a "twice diminished moral capacity" and (2) his thirty-year term is
disproportionate to the sentences imposed on Comer and Harrison. Those
arguments are readily dispelled.
The "twice diminished moral culpability" characterization is based on a
premise that defendant had less culpability for the victim Paul's death because
he was a juvenile at the time of the offenses and the jury did not find that he shot
Paul during the fatal armed robbery and convicted him of only a second-degree,
not a first-degree, robbery. The resentencing court was clearly mindful of both
of these facets of the case and nevertheless concluded the thirty-year murder
sentence was justified.
The court noted that the evidence is unclear whether defendant shot Paul
but found that he "knowingly participated in the armed robbery spree." The
jury’s gradation of the robbery count as a second-degree crime did not preclude
the allowable possibility of an arguably inconsistent verdict on the felony
murder count. State v Banko, 182 N.J. 44, 53 (2004). The court had ample
reason to be skeptical of Harrison's post-verdict affidavit claiming that he,
Comer, and defendant had no involvement in Paul's death. And, as we have
already discussed, the resentencing judge gave abundant consideration to
defendant's impressionability and youthfulness. The revised sentence was not
A-3354-21 22 "morally" unjustified and was well within the court's legal discretion to
calibrate.
As for defendant's claim of disparate sentences, that likewise is
unavailing. We recognize that Harrison received a comparably lesser sentence
of eighteen years with a NERA parole disqualifier, but he pled guilty to
manslaughter, not a murder offense, and cooperated with the State pursuant to
his agreement. Comer, meanwhile, received upon resentencing a 30-year
murder sentence with a parole disqualification period of 25.5 years, 4.5 years
less than defendant. Although we were not supplied with Comer’s resentencing
transcript, there are indicia that he and defendant had different backgrounds, and
the same sentencing judge found mitigating facets applicable to Comer that he
reasonably did not fond applicable to defendant. Given these differences, there
is insufficient proof of disparity to set aside defendant’s revised sentence. See
State v. Roach, 146 N.J. 208, 232-33 (1996). Defendant manifestly received an
"individualized assessment" as prescribed by the law. Zuber, 227 N.J. at 450.
E.
In sum, in assessing the totality of the updated evidence, the resentencing
court reasonably exercised its discretion to reduce defendant's sentence by
thirty-seven years by having the sentences run concurrently instead of
A-3354-21 23 consecutively. However, it also reasonably chose not to reduce the lengthiest
sentence, for felony murder, below the statutory minimum despite having the
authority to do so. See Comer, 249 N.J. at 403. The record reflects the court
qualitatively considered all the requisite factors and did not find defendant fully
rehabilitated, the key question under Comer. Ibid. That conclusion is supported
by substantial and credible evidence in the record and by the court's thoughtful
application of legal principles.
The revised sentence was manifestly within the court's discretion,
compliant with statutory and constitutional guidelines, and does not shock the
judicial conscience. We accordingly affirm it, substantially for the cogent
reasons set forth by the resentencing judge.
That said, we remand the matter to correct, with the State's consent, the
apparent clerical errors in judgment of conviction, specifically to correct the
judgment of conviction to reflect the correct seven-year NERA sentence on
count thirteen and to reflect the mitigating factors that were applied.
We conclude with a parting observation. A general theme of defendant's
brief is that the State and the resentencing court exaggerated the significance of
the thirty-seven-year reduction in the aggregate sentence because the original
sentence allegedly was manifestly excessive. We do not adopt that contention.
A-3354-21 24 The original sentence was affirmed on direct appeal and not altered by the
ensuing PCR proceedings. Until the Supreme Court issued Comer, there was no
authority for the look-back hearing that defendant received. It was not
inappropriate for the resentencing court to take into account defendant’s original
sentence and consider how much, if at all, it needed to be adjusted to comport
with constitutional and legal principles. The comparison was logical and not
based on any exaggerated or flawed reasoning. And, as we have delineated, the
resentencing court gave detailed consideration to the numerous factors that
supported the remedy it adopted. We do not second-guess the court's application
of its discretion to achieve a fair and justifiable outcome, particularly given its
long-standing familiarity with this case.
All other points raised on the appeal lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2).
Affirmed.
A-3354-21 25