                      NOT FOR PUBLICATION WITHOUT THE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-3061-15T2

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

v.

NICHOLAS KIRIAKAKIS,

     Defendant-Appellant.
__________________________

             Argued March 29, 2017 – Decided August 28, 2017

             Before Judges Fuentes, Simonelli and Carroll.

             On appeal from Superior Court of New Jersey, Law
             Division, Bergen County, Indictment No.
             11-04-0877.

             Frank P. Lucianna argued the cause for
             appellant   (Lucianna   &    Lucianna,   P.A.,
             attorneys; Mr. Lucianna, of counsel and on the
             brief; Paul F. Darakjian, on the briefs).

             Elizabeth R. Rebein,        Assistant Prosecutor,
             argued the cause for        respondent (Gurbir S.
             Grewal, Bergen County       Prosecutor, attorney;
             Ms. Rebein, of counsel      and on the brief).

PER CURIAM
     Defendant Nicholas Kiriakakis was tried before a jury on

various dates commencing on October 23, 2012.         On December 13,

2012, the jury found defendant guilty of second degree conspiracy

to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1);

and third degree hindering apprehension, N.J.S.A. 2C:29-3b(4).1

On May 10, 2013, the trial judge sentenced defendant to a term of

eight years with four years of parole ineligibility on the charge

of second degree conspiracy, consecutive to a term of five years

with two and one-half years of parole ineligibility on the charge

of third degree hindering apprehension.          This resulted in an

aggregate sentence of thirteen years with six and one-half years

of parole ineligibility.    The judge also imposed a maximum fine of

$150,000.

     On defendant's direct appeal, this court upheld defendant's

conviction in an unpublished opinion, but remanded the matter for

resentencing   without   consideration   of   aggravating   factor   one,

N.J.S.A. 2C:44-1a(1).    See State v. Kiriakakis, No. A-3061-15T2




1 The jury acquitted defendant on two counts of first degree
murder, N.J.S.A. 2C:11-3a(1) and (2); one count of second degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:394a;
and one count of second degree possession of a handgun without a
permit, N.J.S.A. 2C:39-5b.


                                  2                             A-3061-15T2
(App. Div. Aug. 31, 2015) (slip op. at 3, 27).                   On November 2,

2015,    Judge    Susan   J.     Steele 1 followed   our   instructions      and

conducted a resentencing hearing at which the attorneys were

permitted    to   file    new    sentencing   memoranda    and    present   oral

argument concerning defendant's sentence.

        On March 15, 2016, Judge Steele sentenced defendant to a term

of eight years with four years of parole ineligibility on the

conviction of second degree conspiracy, consecutive to a term of

four     years    on    the     conviction    of   third   degree     hindering

apprehension.      This resulted in an aggregate term of twelve years

with four years of parole ineligibility. Judge Steele also imposed

a fine of $150,000.       Judge Steele found aggravating factors three,

five, and nine, see N.J.S.A. 2C:44-1a, as well as mitigating

factors seven and eight, see N.J.S.A. 2C:44-1b.            She explained the

basis for her findings and conclusions of law in a comprehensive

thirty-two page memorandum of opinion dated February 22, 2016.

Because she did not preside over defendant's trial, Judge Steele

included a thorough recitation of the evidence presented by the

State that led to defendant's conviction.

        Defendant raises the following arguments on appeal:

             POINT I:

1 Judge Steele did not preside over defendant's trial or impose
defendant's original sentence.

                                        3                              A-3061-15T2
          N.J.S.A. 2C:43-6(b) VIOLATES THE SIXTH AMENDMENT TO THE
          UNITED STATES CONSTITUTION.

          a.   N.J.S.A. 2C:43-6(b) violates Blakeley
          [sic] v. Washington, 542 U.S. 296 (2004).

          b.   N.J.S.A. 2C:43-6(b) violates Alleyne v.
          United States, ___ U.S. ___, 133 S. Ct.
               2151 (2013).

          c.   The Court Below Erred By Disregarding
          Blakely v. Washington and misapplying Alleyne
          v. United States.

          POINT II:

          THE RE-SENTENCING JUDGE ERRED IN IMPOSING A FINE.

     We reject these arguments and affirm substantially for the

reasons expressed by Judge Steele in her memorandum of opinion

dated February 22, 2016. We add only the following brief comments.

When we remanded this matter for resentencing, we expressly limited

the scope of the resentencing hearing:

          In short, we find no basis to support aggravating factor
          one.

          The   balance    of   defendant's     arguments,
          including   the     argument    attacking    the
          imposition of consecutive sentences, lack
          sufficient     merit   to     warrant    further
          discussion.     R. 2:11-3(e)(2). Defendant's
          conviction is affirmed.      We remand for the
          court   to    resentence   defendant     without
          consideration of aggravating factor one,
          N.J.S.A. 2C:44-1(a)(1).

          [State v. Kiriakakis, supra, slip op. at 27.]

                                 4                           A-3061-15T2
     Judge Steele acknowledged this limitation in her memorandum

of opinion.   However, despite that defendant's arguments exceeded

the limited scope of our remand and were subject to summary

rejection under the doctrine of res judicata, Judge Steele decided

to address them.   We will follow Judge Steele's lead out of respect

for the time and effort she dedicated to this case.

     At the resentencing hearing, defendant argued, inter alia,

that a judge's imposition of parole ineligibility at a sentencing

hearing pursuant to N.J.S.A. 2C:43-6b is unconstitutional under

Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L.

Ed. 2d 314 (2013).   N.J.S.A. 2C:43-6b provides as follows:

          As part of a sentence for any crime, where the
          court   is   clearly    convinced   that   the
          aggravating factors substantially outweigh
          the mitigating factors, as set forth in
          subsections a. and b. of [N.J.S.A.] 2C:44-1,
          or the court finds that the aggravating factor
          set forth in paragraph (5) of subsection a. of
          [N.J.S.A.] 2C:44-1 applies, the court may fix
          a minimum term not to exceed one-half of the
          term set pursuant to subsection a., or one-
          half of the term set pursuant to a maximum
          period of incarceration for a crime set forth
          in any statute other than this code, during
          which the defendant shall not be eligible for
          parole; provided that no defendant shall be
          eligible for parole at a date earlier than
          otherwise provided by the law governing
          parole.

          [(Emphasis added).]



                                  5                         A-3061-15T2
        Defendant's constitutional challenge to N.J.S.A. 2C:43-6b is

facially specious.       In Alleyne, the United States Supreme Court

held that the imposition of a mandatory minimum sentence based

upon a fact not submitted to the jury for determination beyond a

reasonable doubt violates a criminal defendant's Sixth Amendment

right to a jury trial.      Alleyne, supra, 133 S. Ct. at 2155, 186 L.

Ed. 2d at 321.         The imposition of parole ineligibility under

N.J.S.A. 2C:43-6b, by contrast, is discretionary and based upon

the traditional aggravating and mitigating factors a trial judge

must use to fashion an appropriate term of imprisonment.                Our

Supreme Court has "upheld the constitutionality of statutes that

allow    judges     to impose   mandatory-minimum   parole   ineligibility

terms within the sentencing range authorized by the jury verdict."

State v. Abdullah, 184 N.J. 497, 509 (2005) (citations omitted).

Finally, defendant's reliance on State v. Grate, 220 N.J. 317

(2015), is misplaced.       In Grate, the Court expressly declined to

decide the constitutionality of N.J.S.A. 2C:43-6b and other aspects

of the Graves Act.       Id. at 335 n.2.


        Affirmed.




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