STATE OF NEW JERSEY VS. NUR-RAHEEM PACK (96-05-0778, HUDSON COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2634-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NUR-RAHEEM PACK, a/k/a NUR R. PACK, BOO and RAHEEM PACK,

Defendant-Appellant. _______________________

Submitted April 12, 2021 – Decided May 4, 2021

Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 96-05-0778.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief). PER CURIAM

After a 1997 jury trial, defendant Nur-Raheem Pack was found guilty of

murder and other criminal acts. He was a seventeen-year-old juvenile at the

time of his offenses. The trial court imposed upon him a life sentence, subject

to a thirty-year period of parole ineligibility.

Defendant's ensuing efforts on direct appeal and postconviction relief

("PCR") to set aside his conviction or reduce his sentence were unsuccessful.

See State v. Pack, No. A-2864-97 (App. Div. Feb. 3, 2000) (affirming

defendant's conviction and sentence on direct appeal), certif. denied, 164 N.J.

560 (2000); State v. Pack, No. A-3787-00 (App. Div. Nov. 21, 2002) (affirming

first denial of PCR), certif. denied, 176 N.J. 280 (2003); State v. Pack, No. A-

3486-09 (App. Div. June 7, 2011) (affirming subsequent denial of PCR).

Defendant moved for relief from his sentence in the trial court, arguing

his minimum thirty-year period of incarceration unconstitutionally fails to take

into account the so-called "youth factors" applicable to certain juvenile

offenders under the United States Supreme Court's opinion in Miller v. Alabama,

567 U.S. 460 (2012). The trial court rejected his contentions, first in a written

opinion issued by Judge Martha T. Royster on June 1, 2016. Following the New

Jersey Supreme Court's opinion in State v. Zuber, 227 N.J. 422 (2017)

A-2634-18 2 (implementing the Miller decision in this state for eligible juvenile offenders),

defendant renewed his motion for relief, which Judge Sheila A. Venable denied

in a written opinion on June 25, 2018.

On appeal, defendant's letter brief 1 presents the following argument for

our consideration:

POINT I

THIS MATTER MUST BE REMANDED FOR CONSIDERATION OF MR. PACK'S ARGUMENT THAT HIS SENTENCE WAS ILLEGALLY IMPOSED WHEN THE COURT FAILED TO CONSIDER THAT HE WAS A CHILD AT THE TIME OF THE OFFENSE

We affirm. The holding in Miller does not apply to defendant because his

custodial term with a thirty-year parole disqualifier is not the functional

equivalent of a life-without-parole ("LWOP") sentence. See State v. Tormasi,

466 N.J. Super. 51, 66 (App. Div. 2021); see also State v. Bass, 457 N.J. Super.

1, 13-14 (App. Div. 2018).

Despite an invitation by the Court in Zuber, 227 N.J. at 452, for the

Legislature to consider measures that would extend the Miller factors and

1 We decline to comment on the argument presented for the first time in defendant's reply brief concerning his sentence. See State v. Lenihan, 219 N.J. 251, 265 (2014). In any event, that argument appears to overlap with the argument in the initial brief. A-2634-18 3 require post-sentencing review of lengthy prison terms imposed on juvenile

offenders, the Legislature thus far has not done so. Nor has the Supreme Court

mandated such an expansion of the law. Hence, the policy arguments raised by

defendant seeking to change or re-interpret the governing law are not

appropriate for this intermediate appellate court. 2

Affirmed.

2 We recognize that on March 26, 2021, the Supreme Court granted certification in State v. Comer, A-42-20, which presents this issue: "Is N.J.S.A. 2C:11- 3(b)(1), which mandates a minimum sentence of at least thirty years in prison without parole for murder, unconstitutional as applied to juvenile offenders?"

A-2634-18 4