                        NOT FOR PUBLICATION WITHOUT THE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-1928-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

YERO TAKUMA a/k/a ANDREW
GRIFFITH,

        Defendant-Appellant.

_____________________________

              Argued May 30, 2018 – Decided July 6, 2018

              Before Judges Fisher, Moynihan and Natali.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 84-
              05-1653 and 84-05-1654.

              James K. Smith, Jr., Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              James K. Smith, Jr., of counsel and on the
              brief).

              Frank J. Ducoat, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney;
              Frank J. Ducoat, of counsel and on the brief).

PER CURIAM
       Defendant Yero Takuma appeals from the denial of his motion

to correct an illegal sentence, arguing:

            POINT I

            BECAUSE THE EIGHTH AMENDMENT AND OUR STATE
            CONSTITUTION    GIVE    JUVENILE     OFFENDERS
            SENTENCED TO LENGTHY PRISON TERMS "SOME
            MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE BASED
            ON DEMONSTRATED MATURITY AND REHABILITATION,"
            DEFENDANT TAKUMA, WHO HAS ALREADY SERVED IN
            EXCESS OF 33 YEARS IN PRISON, MUST BE
            RESENTENCED.

                 A.   THE EIGHTH AMENDMENT AND JUVENILE
                 OFFENDERS.

                 B.   THE   RECOGNITION   THAT   JUVENILE
                 OFFENDERS ARE SUSCEPTIBLE TO CHANGE.

                 C.   THE ZUBER[1] OPINION AND OUR STATE
                 CONSTITUTION.

                 D.   UNDER THE ANALYSIS SET FORTH IN
                 MILLER[2] AND ZUBER, JUVENILE OFFENDERS
                 WHO HAVE SERVED MORE THAN 30 YEARS IN
                 PRISON ARE ENTITLED TO A RESENTENCING.

We decline to extend defendant's interpretation of the precepts

of Miller and Zuber to this case and affirm.




1
  State v. Zuber, 227 N.J. 422, cert. denied, ___ U.S. ___, 138 S.
Ct. 152 (2017).
2
    Miller v. Alabama, 567 U.S. 460 (2012).



                                  2                          A-1928-16T1
         Defendant, having been charged under two indictments for

crimes committed when he was sixteen years old,3 pleaded guilty to

all four counts of the first indictment: felony murder of Preston

McGhee, N.J.S.A. 2C:11-3(a)(3) (count one); first-degree robbery

of McGhee, N.J.S.A. 2C:15-1 (count two); third-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and

second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count four); and to aggravated manslaughter

as   a    lesser      included   offense          of     count    one   of     the    second

indictment.4          The State agreed to recommend: (1) a sentence of

thirty years to life for felony murder under count one of the

first indictment with a minimum parole ineligibility of thirty

years;     (2)    a    concurrent      term       for    the     sentence    imposed       for

aggravated       manslaughter     under       the       second    indictment;        and   (3)

dismissal of the remaining counts of the second indictment.                                 In

accordance       with    the   range    set       forth    in     the   plea   agreement,


3
   The crimes were committed on February 13, 1984.                          Defendant was
born on May 15, 1967.
4
  The second indictment charged defendant with the purposeful or
knowing murder of Edmond Leslie, N.J.S.A. 2C:11-3(a)(1), (2)
(count one); felony murder of Leslie, N.J.S.A. 2C:11-3(a)(3)
(count two); first-degree robbery of Leslie, N.J.S.A. 2C:15-1
(count three); third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).



                                              3                                      A-1928-16T1
defendant was sentenced in January 1985 to life imprisonment with

a thirty-year parole ineligibility period for felony murder, and

to concurrent terms of twenty years for robbery, five years for

unlawful possession of a handgun, and ten years for possession of

a weapon for an unlawful purpose.          On the second indictment, he

was sentenced to a concurrent term of ten years for aggravated

manslaughter.5

       Before   addressing   defendant's   arguments,   we   turn   to   the

State's claims that this appeal is procedurally barred under Rule

3:22-5 and is moot.

       The Rule 3:22-5 bar stems from defendant's January 2013 motion

for reduction of sentence under Rule 3:21-10 based on the United

States Supreme Court's holding in Miller.       Because we affirmed the

trial court's denial of that motion,6 the State argues defendant

is seeking "a second bite at the same apple," which should be

precluded inasmuch as our decision was a "prior adjudication upon

the merits of any ground for relief [which] is conclusive whether

made in the proceedings resulting in the conviction or in any

post-conviction proceeding brought pursuant to this rule or prior


5
   We affirmed defendant's sentence but merged the robbery
conviction with his felony murder conviction and vacated the
robbery sentence.  State v. Griffith, No. A-2903-84 (App. Div.
Nov. 19, 1985).
6
    State v. Takuma, No. A-4784-13 (App. Div. Feb. 10, 2015).

                                    4                               A-1928-16T1
to   the   adoption   thereof,   or   in   any   appeal    taken    from   such

proceedings," R. 3:22-5.

      Notwithstanding    that    defendant's     present    claim    directly

references Miller, he avers in his reply brief that he "is not

seeking to relitigate a Miller claim, he is seeking relief based

on Zuber."    Setting aside for a moment that Zuber was decided by

the Supreme Court after the motion judge had already entered the

order that is the basis for this appeal – and before this appeal

was filed7 – we will allow defendant's challenge to what he alleges

is an illegal sentence.       See Zuber, 227 N.J. at 437 (recognizing

that Rule 3:21-10(b)(5) permits a defendant to "challenge an

illegal sentence at any time").

      We also determine the State's mootness argument – based on

defendant's present parole-eligible status after having served

thirty years — to be without sufficient merit to warrant discussion

here.      R. 2:11-3(e)(2).      Defendant's parole status could be

impacted if we were to order defendant to be resentenced, and a

judge reduced the life term.      See In re Registrant J.S., 444 N.J.

Super. 303, 313 (App. Div. 2016) (acknowledging a case is moot

"when the decision sought in a matter, when rendered, can have no


7
  The motion judge's order was entered November 17, 2016.    Our
Supreme Court decided Zuber on January 11, 2017. Defendant filed
this appeal six days later.


                                      5                                A-1928-16T1
practical effect on the existing controversy" (quoting Greenfield

v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div.

2006))).

      Despite   appellate    counsel's        advancement         of   an    argument

unraised to the trial court, we will consider defendant's argument

that he is entitled to resentencing under the Supreme Court's

holding in Zuber, by extension of Miller.8                  See ACLU v. Cty. of

Hudson, 352 N.J. Super. 44, 72 (App. Div. 2002) (recognizing that

an argument not raised in the trial court may be considered on

appeal where "an arguably superseding . . . decisional development

occur[red] between the time a court rendered its decision and

appellate consideration of the judgment or order" and "the focal

issue [was] entirely a question of law").              "We consider legal and

constitutional    questions        de       novo."          State      v.    Galicia,

210 N.J. 364, 381 (2012); see also State v. Hudson, 209 N.J. 513,

529 (2012) (noting that questions of law in sentencing are reviewed

de novo).

      We first conclude that the Eighth Amendment prohibition on

"a   sentencing   scheme    that    mandates         life    in     prison    without


8
 The trial court did consider our now overturned decision in State
v. Zuber, 442 N.J. Super. 611 (App. Div. 2015), concluding that
defendant's thirty-year period of parole ineligibility "did not
amount to a de facto life sentence as it afforded him the
opportunity to have a meaningful and realistic opportunity for
parole."

                                        6                                     A-1928-16T1
possibility of parole for juvenile offenders," as determined by

the Miller court, 567 U.S. at 479, is not implicated here.                       In

considering the reach of Miller and other related decisions, the

Zuber Court considered the sentences of two offenders who were

juveniles   when     they   committed       their   crimes:   Zuber,   who     was

convicted of two rapes and sentenced to an aggregate of 110 years

with fifty-five years of parole ineligibility – first eligible for

parole at age seventy-two; and Comer, who was convicted of four

armed robberies and sentenced to an aggregate of seventy-five

years with just over sixty-eight years of parole ineligibility –

first eligible at age eighty-five.             Zuber, 227 N.J. at 428, 430,

433.     Although the Court determined both sentences were "not

officially 'life without parole,'" they nonetheless "trigger[ed]

the    protections     of   Miller      under       the   Federal   and     State

Constitutions."      Id. at 448.

       The important question considered by the Zuber Court – "Will

a juvenile be imprisoned for life, or will he have a chance at

release?"    Id. at 446 – has already been answered in this case.

Defendant – who is not yet forty years old — has already been

considered for parole.9      Unlike the defendants in Zuber, defendant


9
  The New Jersey Parole Board denied defendant's application in
May 2015. Takuma v. N.J. State Parole Bd., No. A-5672-14 (App.
Div. May 2, 2017) (slip op. at 5). We reversed the Parole Board's


                                        7                                 A-1928-16T1
did not face "potential release after five or six decades of

incarceration, when they would be in their seventies and eighties."

Id. at 448.    Defendant has not – in violation of the Eighth

Amendment – been "denied [by the State of] any chance to later

[after sentencing] demonstrate that he is fit to rejoin society."

Graham v. Florida, 560 U.S. 48, 79 (2009) (emphasis added).

     Unlike the sentences imposed in Zuber, this was a bargained-

for term, pursuant to which defendant enjoyed the benefit of

sentences on all other counts that ran concurrent to the life term

with a mandated thirty years of parole ineligibility. The sentence

– which has already resulted in an opportunity to obtain release

– hardly amounts to the constitutionally infirm life without

effective chance of parole terms decried in Zuber.    Further, the

sentencing judge said he was burdened "because the court realizes

the age of the [d]efendant when he perpetrated these crimes, and

he is young today," and found "there's one mitigating factor, his

age."   The judge also noted that defendant did

          not have a lengthy record because he's a
          [juvenile] and as a [juvenile] he had one
          possession in 1983 of a dangerous weapon which
          was a gun. His background, he was attending

denial of defendant's parole application and remanded the matter
for the Board to conduct a new parole hearing within forty-five
days because it was unclear what standard the Board applied when
it reviewed defendant's application. Id. at 8-9. The record does
not contain the Parole Board's decision on remand.


                                8                           A-1928-16T1
            school but had to leave.      He was always
            involved in fights, showing the nature of the
            person. He was involved in fights and as a
            matter of fact was expelled, I think from
            Barringer High School, because of many
            incidents of fighting in school, indicating
            violence within [defendant] that he expressed
            one night in killing two people.

The judge imposed sentence after weighing the circumstances of the

crimes against defendant's age and background.          We find no support

for defendant's contention that the sentencing judge believed

defendant "might be beyond rehabilitation."

     Defendant did not raise to the trial court, likely because

Zuber had not yet been decided, his present argument that juveniles

who have served prison terms of thirty years or more should be

considered for resentencing or parole.        Our Supreme Court declined

to address that issue in Zuber, and instead "encourage[d] the

Legislature to examine this issue," observing "Graham left it to

the States 'to explore the means and mechanisms' to give defendants

'some   meaningful   opportunity        to   obtain    release   based      on

demonstrated maturity and rehabilitation.'"            Zuber, 227 N.J. at

452 (quoting Graham, 560 U.S. at 75).            We follow the Court's

recommendation,    noting   the   Legislature's       introduction    –   and

referral to the Law and Public Safety Committee – of S. 428 (2018).

We also note defendant has had a "meaningful opportunity to obtain

release."


                                    9                                A-1928-16T1
     We determine the balance of defendant's arguments to be

without    sufficient   merit   to   warrant   discussion   in   a   written

opinion.    R. 2:11-3(e)(2).    Inasmuch as we determine defendant is

not entitled to be resentenced under Zuber, we need not consider

defendant's musings that our Supreme Court chose resentencing as

the remedy because the Parole Board does not consider a juvenile's

youth and attendant circumstances.        The Supreme Court made no such

pronouncement.     Moreover, we will not consider an issue that

implicates the interplay of judicial sentencing and executive

parole raised for the first time in defendant's reply brief.              See

Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super.

590, 596 (App. Div. 2001) (declining to consider an issue raised

"for the first time in a reply brief"); see also State v. Smith,

55 N.J. 476, 488 (1970).

     Affirmed.




                                     10                              A-1928-16T1
