NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3496-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT ABRUZIA,
Defendant-Appellant. _______________________
Submitted April 30, 2025 – Decided May 19, 2025
Before Judges Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-12-3865.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Michael Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Laura E. Wojcik, Deputy Attorney General, of counsel and on the brief).
PER CURIAM A jury convicted defendant Vincent Abruzia of felony murder, reckless
manslaughter, four counts of robbery, conspiracy to commit murder, conspiracy
to commit robbery, conspiracy to commit aggravated assault, and weapons
offenses for his part in two drug territory incidents in Newark. During the April
1996 related melees, a rival gang member was shot to death and a bystander was
wounded by a stray bullet.
Twenty years old when he committed the crimes, defendant was sentenced
to an aggregate prison term of life plus fifteen years, with a thirty-five-year
parole disqualifier.1 On direct appeal, we affirmed defendant's convictions and
sentence in an unpublished opinion. State v. Abruzia, No. A-2324-02 (App.
Div. Feb. 20, 2004) (slip op. at 18). We also affirmed the denial of defendant's
ensuing post-conviction relief petition, asserting ineffective assistance of trial
counsel. State v. Abruzia, No. A-5219-06 (App. Div. Aug. 11, 2008) (slip op.
at 8). Thereafter, a federal court denied defendant's petition for a writ of habeas
corpus. Abruzia v. Mee, No. 09-5773, 2012 WL 503835, at *10 (D.N.J. Feb.
15, 2012).
1 As we explain below, the judgment of conviction (JOC) incorrectly memorialized the oral pronouncement of sentence and, in the final charges section, erroneously reflected the conspiracy to commit murder as another robbery conviction. A-3496-22 2 In May 2023, defendant filed a pro se application, styled as a motion for
reduction of sentence pursuant to Rule 3:21-10(b)(4) (recognizing the absence
of a temporal limit on the court's ability to review a sentence "authorized by the
Code of Criminal Justice"). Defendant argued as a youthful offender, he was
entitled to resentencing under the twenty-year "lookback" provision for juvenile
offenders pursuant to State v. Comer, 249 N.J. 359 (2022). In his moving
papers, defendant sought appointment of counsel to expound upon the issues
raised.
On June 23, 2023, the judge, who had no prior involvement in defendant's
matters, denied defendant's motion on the papers without assigning counsel. In
her accompanying letter to defendant, the judge explained the Court's decision
in Comer only applied to juvenile offenders. Because defendant was twenty
years old when he committed his crimes, the judge concluded he was not entitled
to resentencing. The judge did not expressly address defendant's request for
counsel.
On appeal, defendant raises the following point for our consideration:
POINT I
RESENTENCING SHOULD OCCUR BECAUSE THE COMER DECISION -- WHICH REQUIRES A RESENTENCING AFTER AN ADOLESCENT OFFENDER UNDER AGE EIGHTEEN SERVES
A-3496-22 3 TWENTY YEARS -- SHOULD EXTEND TO ADOLESCENTS AGED TWENTY, LIKE [DEFENDANT]. U.S. CONST. AMENDS. VIII, XIV; N.J. CONST. ART. I, ¶ 12.
A. Legal Background: Adolescents Under Eighteen Receive Constitutional Protection Against Lengthy Sentences Because of Their Diminished Culpability and Likelihood of Reform, Characteristics Described by the Miller [2] Factors.
B. Twenty-Year-Olds Should Receive the Same Constitutional Protection Against Lengthy Sentences Because the Miller Factors Apply Equally to Them.
C. The Issue of Extending Comer is Open, and a Prior Appellate Division Panel Was Incorrect to Decide Otherwise.
Defendant does not challenge the motion court's implicit finding that he
failed to demonstrate good cause for the assignment of counsel. An issue not
briefed is deemed waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014);
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2025). We note only we have recognized under similar circumstances the
motion court "implicitly found assignment of counsel was not warranted." State
2 Miller v. Alabama, 567 U.S. 460 (2012). A-3496-22 4 v. Jones, 478 N.J. Super. 532, 552 (App. Div.), certif. denied, 259 N.J. 304, 259
N.J. 314, and 259 N.J. 315 (2024).
In its responding brief, the State moves for summary disposition under
Rule 2:8-3, arguing defendant's reprised contentions are "entirely preclude[d]"
by our decision in Jones as we declined to extend the Court's holding in Comer
to young adult offenders who were defendant's age when they committed their
crimes. Because the State failed to comply with Rule 2:8-1(a), however, we
decline to consider its contentions as a summary disposition "motion."
Nonetheless, having considered defendant's contentions in view of the
principles chronicled in Jones, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add the following remarks
to give context to our decision. We also remand for correction of the JOC.
In Comer, our Supreme Court recognized "children are constitutionally
different from adults for purposes of sentencing," 249 N.J. at 384 (quoting
Miller, 567 U.S. at 471), and held "[j]uvenile offenders sentenced under the
[homicide] statute may petition for a review of their sentence after having spent
[twenty] years in jail," id. at 403 (citing Miller, 567 U.S. at 477-78). Comer was
seventeen when he committed his crimes, id. at 371, and James Zarate, the
A-3496-22 5 defendant in the companion case, was fourteen years old when he committed his
crimes, id. at 374.
Following a flurry of unpublished decisions affirming the post-conviction
motion courts' denial of various applications by youthful offenders , who were
between the ages of eighteen and twenty when they committed their crimes and
serving mandatory sentences greater than two decades, we affirmed other courts'
similar denials in three consolidated matters. Jones, 478 N.J. Super. at 553. The
three defendants in the consolidated Jones cases were eighteen and twenty years
old when they committed homicide. Id. at 541, 544, 547. Similar to defendant
in the present matter, each defendant in Jones sought resentencing, arguing the
Comer sentencing review procedure "should extend to youthful offenders
between the ages of eighteen and twenty when they committed their offenses,"
id. at 534-35, because "developmental science recognizes no meaningful
cognitive differences between juveniles and young adults," id. at 542.
Following an extensive review of the "guiding legal principles" applicable
to the sentencing of juvenile offenders, id. at 535-36, we declined to extend the
holding in Comer to youthful offenders, id. at 549. We found "the Court's
Free access — add to your briefcase to read the full text and ask questions with AI
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-3496-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT ABRUZIA,
Defendant-Appellant. _______________________
Submitted April 30, 2025 – Decided May 19, 2025
Before Judges Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-12-3865.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Michael Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Laura E. Wojcik, Deputy Attorney General, of counsel and on the brief).
PER CURIAM A jury convicted defendant Vincent Abruzia of felony murder, reckless
manslaughter, four counts of robbery, conspiracy to commit murder, conspiracy
to commit robbery, conspiracy to commit aggravated assault, and weapons
offenses for his part in two drug territory incidents in Newark. During the April
1996 related melees, a rival gang member was shot to death and a bystander was
wounded by a stray bullet.
Twenty years old when he committed the crimes, defendant was sentenced
to an aggregate prison term of life plus fifteen years, with a thirty-five-year
parole disqualifier.1 On direct appeal, we affirmed defendant's convictions and
sentence in an unpublished opinion. State v. Abruzia, No. A-2324-02 (App.
Div. Feb. 20, 2004) (slip op. at 18). We also affirmed the denial of defendant's
ensuing post-conviction relief petition, asserting ineffective assistance of trial
counsel. State v. Abruzia, No. A-5219-06 (App. Div. Aug. 11, 2008) (slip op.
at 8). Thereafter, a federal court denied defendant's petition for a writ of habeas
corpus. Abruzia v. Mee, No. 09-5773, 2012 WL 503835, at *10 (D.N.J. Feb.
15, 2012).
1 As we explain below, the judgment of conviction (JOC) incorrectly memorialized the oral pronouncement of sentence and, in the final charges section, erroneously reflected the conspiracy to commit murder as another robbery conviction. A-3496-22 2 In May 2023, defendant filed a pro se application, styled as a motion for
reduction of sentence pursuant to Rule 3:21-10(b)(4) (recognizing the absence
of a temporal limit on the court's ability to review a sentence "authorized by the
Code of Criminal Justice"). Defendant argued as a youthful offender, he was
entitled to resentencing under the twenty-year "lookback" provision for juvenile
offenders pursuant to State v. Comer, 249 N.J. 359 (2022). In his moving
papers, defendant sought appointment of counsel to expound upon the issues
raised.
On June 23, 2023, the judge, who had no prior involvement in defendant's
matters, denied defendant's motion on the papers without assigning counsel. In
her accompanying letter to defendant, the judge explained the Court's decision
in Comer only applied to juvenile offenders. Because defendant was twenty
years old when he committed his crimes, the judge concluded he was not entitled
to resentencing. The judge did not expressly address defendant's request for
counsel.
On appeal, defendant raises the following point for our consideration:
POINT I
RESENTENCING SHOULD OCCUR BECAUSE THE COMER DECISION -- WHICH REQUIRES A RESENTENCING AFTER AN ADOLESCENT OFFENDER UNDER AGE EIGHTEEN SERVES
A-3496-22 3 TWENTY YEARS -- SHOULD EXTEND TO ADOLESCENTS AGED TWENTY, LIKE [DEFENDANT]. U.S. CONST. AMENDS. VIII, XIV; N.J. CONST. ART. I, ¶ 12.
A. Legal Background: Adolescents Under Eighteen Receive Constitutional Protection Against Lengthy Sentences Because of Their Diminished Culpability and Likelihood of Reform, Characteristics Described by the Miller [2] Factors.
B. Twenty-Year-Olds Should Receive the Same Constitutional Protection Against Lengthy Sentences Because the Miller Factors Apply Equally to Them.
C. The Issue of Extending Comer is Open, and a Prior Appellate Division Panel Was Incorrect to Decide Otherwise.
Defendant does not challenge the motion court's implicit finding that he
failed to demonstrate good cause for the assignment of counsel. An issue not
briefed is deemed waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014);
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2025). We note only we have recognized under similar circumstances the
motion court "implicitly found assignment of counsel was not warranted." State
2 Miller v. Alabama, 567 U.S. 460 (2012). A-3496-22 4 v. Jones, 478 N.J. Super. 532, 552 (App. Div.), certif. denied, 259 N.J. 304, 259
N.J. 314, and 259 N.J. 315 (2024).
In its responding brief, the State moves for summary disposition under
Rule 2:8-3, arguing defendant's reprised contentions are "entirely preclude[d]"
by our decision in Jones as we declined to extend the Court's holding in Comer
to young adult offenders who were defendant's age when they committed their
crimes. Because the State failed to comply with Rule 2:8-1(a), however, we
decline to consider its contentions as a summary disposition "motion."
Nonetheless, having considered defendant's contentions in view of the
principles chronicled in Jones, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add the following remarks
to give context to our decision. We also remand for correction of the JOC.
In Comer, our Supreme Court recognized "children are constitutionally
different from adults for purposes of sentencing," 249 N.J. at 384 (quoting
Miller, 567 U.S. at 471), and held "[j]uvenile offenders sentenced under the
[homicide] statute may petition for a review of their sentence after having spent
[twenty] years in jail," id. at 403 (citing Miller, 567 U.S. at 477-78). Comer was
seventeen when he committed his crimes, id. at 371, and James Zarate, the
A-3496-22 5 defendant in the companion case, was fourteen years old when he committed his
crimes, id. at 374.
Following a flurry of unpublished decisions affirming the post-conviction
motion courts' denial of various applications by youthful offenders , who were
between the ages of eighteen and twenty when they committed their crimes and
serving mandatory sentences greater than two decades, we affirmed other courts'
similar denials in three consolidated matters. Jones, 478 N.J. Super. at 553. The
three defendants in the consolidated Jones cases were eighteen and twenty years
old when they committed homicide. Id. at 541, 544, 547. Similar to defendant
in the present matter, each defendant in Jones sought resentencing, arguing the
Comer sentencing review procedure "should extend to youthful offenders
between the ages of eighteen and twenty when they committed their offenses,"
id. at 534-35, because "developmental science recognizes no meaningful
cognitive differences between juveniles and young adults," id. at 542.
Following an extensive review of the "guiding legal principles" applicable
to the sentencing of juvenile offenders, id. at 535-36, we declined to extend the
holding in Comer to youthful offenders, id. at 549. We found "the Court's
decision was limited to juvenile offenders tried and convicted of murder in adult
court." Ibid. In reaching our conclusion, we relied in part on State v. Ryan, 249
A-3496-22 6 N.J. 581 (2022), an opinion the Court issued one month after deciding Comer.
Jones, 478 N.J. Super. at 549-50.
In Ryan, the Court observed: "The Legislature has chosen eighteen as the
threshold age for adulthood in criminal sentencing. Although this choice may
seem arbitrary, 'a line must be drawn,' and '[t]he age of [eighteen] is the point
where society draws the line for many purposes between childhood and
adulthood.'" 249 N.J. at 600 n.10 (alterations in original) (quoting Roper v.
Simmons, 543 U.S. 551, 574, (2006)); see also Jones, 478 N.J. Super. at 551
(citing N.J.S.A. 2A:4A-22(a) (defining a juvenile as an individual "under the
age of [eighteen] years"); N.J.S.A. 2A:4A-22(b) (defining an adult as "an
individual [eighteen] years of age or older")).
In Jones, we further noted "our [limited] institutional role as an
intermediate appellate court." 478 N.J. Super. at 551. Bound by the Supreme
Courts of the United States and this state, we declined "to disturb the motion
judges' decisions, which emphasized the Supreme Court in Comer limited its
decision to juveniles." Ibid.
We reach the same conclusions in this case. Perceiving no basis to deviate
from our opinion in Jones, we affirm the June 23, 2023 order denying
defendant's motion for resentencing.
A-3496-22 7 As the State notes, however, there exists a discrepancy between the JOC
and oral pronouncement of sentence. According to the sentencing transcript, the
trial court ordered a life imprisonment term with a thirty-year parole disqualifier
on defendant's felony murder conviction under count eight of the indictment,
imposed consecutively to the fifteen-year prison term with a five-year parole
disqualifier on the robbery conviction under count three. As we recognized in
our decision upholding defendant's aggregate sentence on direct appeal, "[t]he
trial judge sentenced defendant to an aggregate term of life imprisonment plus
fifteen years, with thirty-five years of parole ineligibility." Abruzia, No. A-
2324-02, slip op. at 16.
However, the JOC reflects count eight was imposed "CC," that is
concurrently, "TO COUNT #3." Because the oral pronouncement of sentence
controls when a discrepancy exists between the court's oral decision and the
JOC, "a remand is required to conform the [JOC]" accordingly. See State v.
Abril, 444 N.J. Super. 553, 565 (App. Div. 2016). In addition, the final charges
section of the JOC incorrectly reflects defendant was convicted of a fifth robbery
under count two of the indictment, which charged conspiracy to commit murder.
Count two is accurately reflected in the original charges section of the JOC, the
A-3496-22 8 jury's verdict sheet, and the sentencing transcript. On remand, the JOC shall be
corrected accordingly. See ibid.
Affirmed but remanded solely to correct the JOC. Jurisdiction is not
retained.
A-3496-22 9