RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2677-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY ZUBER,

Defendant-Appellant.

________________________

Argued telephonically March 23, 2020 –

Decided May 6, 2020

Before Judges Sabatino, Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 81-06-3729 

and 81-06-3730.

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 briefs).

Frank J. Ducoat, Special Deputy Attorney 

General/Acting Assistant Prosecutor, 

argued the cause for respondent (Theodore N. Stephens

NOT FOR PUBLICATION WITHOUT THE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.
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II, Acting Essex County Prosecutor, attorney; Frank J. 

Ducoat, of counsel and on the brief).

PER CURIAM

This case1returns to us following a remand by our Supreme Court 

directing the trial court to conduct a second resentencing to comport with the 

Eighth Amendment of the United States Constitution. See State v. Zuber, 227 

N.J. 422, cert. denied, ___ U.S. ___, 138 S. Ct. 152 (2017).

In 1981, at the age of seventeen, Zuber and others sexually assaulted a 

woman and a high school student in two separate incidents, after threatening to 

kill those victims at knifepoint. He was waived to the adult criminal court and,

in two jury trials, was convicted of numerous offenses, including aggravated 

sexual assault, kidnapping, and robbery.

The judge who presided over the trials initially imposed consecutive 

prison sentences aggregating 150 years, subject to a 75-year aggregate period of 

1

 Because of some related issues, this appeal was argued back to back with two 

other appeals that concern the constitutionality of lengthy sentences imposed on 

minors who committed very serious crimes and were tried as adults, State v. 

James Zarate, A-2001-17, and State v. Comer, A-1230-18. Comer's case was a 

companion to Zuber's before the Supreme Court and was decided with Zuber's 

in a consolidated opinion. 227 N.J. at 422, 453. We issue opinions in all three 

cases today. 
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parole ineligibility. We upheld Zuber's convictions on direct appeal, and they 

are not contested here.

In 1988, the Supreme Court summarily remanded the matter for a first 

resentencing to reconsider the imposition of the consecutive sentences under 

state law, specifically State v. Yarbough, 100 N.J. 627 (1985). State v. Zuber, 

111 N.J. 650 (1988). At the first resentencing in 1988, the trial court revised 

Zuber's sentence to an aggregate term of 110 years, with a 55-year parole 

disqualifier. This first resentencing left intact much of the consecutive aspects 

of the aggregate sentence. 

After the United States Supreme Court held in Graham v. Florida, 560 

U.S. 48 (2010), that sentencing a juvenile offender to life without parole for a 

non-homicide offense violates the Cruel and Unusual Punishment Clause of the 

Eighth Amendment, Zuber moved for relief in the trial court. He argued that his 

aggregate 110-year term/55-year parole-ineligible sentence is the functional 

equivalent of life without parole, and that the consecutive sentences imposed 

upon him are unconstitutionally punitive. 

The trial court in 2012 denied Zuber any further reduction of his sentence. 

This court affirmed that ruling. We held that Zuber's sentence was not the 

functional equivalent of life without parole, because life expectancy tables 
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indicated that he has a realistic possibility of having several years of freedom 

after serving his custodial term. State v. Zuber, 442 N.J. Super. 611, 627 (App. 

Div. 2015). We also declined to set aside the consecutive aspects of Zuber's 

sentence. Id. at 625. 

In its opinion reversing and remanding this matter, the Court rejected this 

court's reliance on life expectancy tables. Zuber, 227 N.J. at 450. The Court 

determined that Zuber's then-existing lengthy sentence should be analyzed as 

one that is the functional equivalent of life without parole, and thereby must 

comport with associated Eighth Amendment limitations. Id. at 450-53. The 

Court accordingly instructed the trial court to reconsider Zuber's lengthy 

consecutive sentences, in light of the youth-related constitutional factors 

prescribed by the United States Supreme Court in Miller v. Alabama, 567 U.S. 

460 (2012), and its progeny. It also instructed the trial court to consider 

consecutive terms for juveniles under the Yarbough guidelines with "a 

heightened level of care." Zuber, 227 N.J. at 450. 

Among other things, our Supreme Court directed the trial court to 

"consider the Miller factors when it determines the [appropriate] length of his 

sentences and when it decides whether the counts of conviction should run 
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consecutively." Id. at 453. The Court further directed the trial court to "consider 

any rehabilitative efforts since [Zuber's] original sentence" in 1983. Ibid.

On remand at the second resentencing in January 2019, a different trial 

court judge endeavored to apply the Miller factors and concluded that a further 

reduction of Zuber's sentence was constitutionally warranted. As part of his 

written analysis, the judge expressly found, under what is known as the "fifth" 

Miller factor, that Zuber is "not irreparably corrupt," and that "he presented 

strong evidence of rehabilitative efforts." Even so, the judge was also persuaded 

that other Miller factors weighed against Zuber's plea for immediate release. 

Adopting a suggestion by the prosecutor, the judge resentenced Zuber to 

an aggregate sentence of 86 years, with an aggregate 43-year period of parole 

ineligibility. The judge found this altered sentence will provide Zuber "both a 

meaningful opportunity to be released and hope that he will have a life outside 

prison." According to Zuber's counsel, he is not eligible for parole under this 

revised sentence until April 2025. 

On his present appeal, Zuber, who is now age fifty-six and who has not 

had a disciplinary infraction in prison in over a decade, argues that his continued 

imprisonment is unconstitutional. He asserts the trial court misapplied the 

Miller factors at the second resentencing. 
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Among other things, Zuber contends the trial court failed to adhere to the 

Supreme Court's direction that, in order to comply with the Eighth Amendment, 

judges must "exercise a heightened level of care" when imposing "multiple 

consecutive sentences on juveniles." Zuber, 227 N.J. at 450. He urges that we 

order his immediate release or, alternatively, a further reduction of his sentence 

and a prompt hearing before the Parole Board.

For the reasons that follow, we affirm the trial court in part with respect 

to its denial of Zuber's request for immediate release, but remand in part for yet 

another resentencing. Specifically, we instruct the court to reconsider the 

application of the Miller factors to the consecutive aspects of Zuber's sentence 

with a "heightened level of care," particularly as to the two robbery counts.

I.

Much has already been written about Zuber's case, and we need not repeat 

all of the factual and procedural details here. We incorporate by reference the 

background recited at length in our previous published opinion and the Supreme 

Court's 2017 opinion.

A.

We begin our discussion with a recognition that Zuber acknowledges 

today that he committed atrocious crimes on two occasions in November 1981
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and December 1981 at the age of seventeen. As described in the Supreme 

Court's opinion:

Defendant Ricky Zuber participated in two separate 

gang rapes in November and December 1981, when he 

was seventeen years old. In the first, he and others 

forced a woman at knife-point to drive to a nearby 

cemetery, where the group raped her repeatedly and 

threatened her with disfigurement. Afterward, the 

group abandoned the woman naked in the cemetery. In 

the second incident, Zuber and others abducted a 

sixteen-year-old high school student, drove her to an 

unknown location, and raped her repeatedly. Zuber was 

the "ringleader" of both assaults.

[Id. at 430.]

Zuber's convictions, and corresponding sentences after they were first 

revised on remand in 1988, were as follows. For the gang rape and related 

crimes committed in November 1981:

• 20 years' imprisonment with 10 years of parole 

ineligibility for first-degree kidnapping, N.J.S.A. 

2C:13–1(b)(1);

• A consecutive term of 10 years' imprisonment with 

5 years of parole ineligibility for second-degree 

robbery, N.J.S.A. 2C:15–1;

• A second consecutive term of 20 years'

imprisonment with 10 years of parole ineligibility 

for first-degree aggravated sexual assault by vaginal 

penetration, N.J.S.A. 2C:14–2; and
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• A concurrent term of 20 years' imprisonment with 

10 years of parole ineligibility for first-degree 

aggravated sexual assault by anal penetration, 

N.J.S.A. 2C:14–2—which the court originally 

imposed as a consecutive term.

[Id. at 430-31.]

The aggregate sentence for the November 1981 offense after the first 

resentencing was therefore 50 years of imprisonment, with 25 years of parole 

ineligibility. Id. at 431.

As for the gang rape and related offenses that Zuber committed in 

December 1981, the court on the first resentencing imposed the following terms:

• 20 years' imprisonment with 10 years of parole 

ineligibility for first-degree kidnapping, N.J.S.A. 

2C:13–1(b)(1);

• A consecutive term of 20 years' imprisonment with 

10 years of parole ineligibility for first-degree 

robbery, N.J.S.A. 2C:15–1;

• A second consecutive term of 20 years'

imprisonment with 10 years of parole ineligibility 

for first-degree aggravated sexual assault by vaginal 

penetration, N.J.S.A. 2C:14–2;

• A concurrent term of 20 years' imprisonment with 

10 years of parole ineligibility for first-degree 

aggravated sexual assault by anal penetration, 

N.J.S.A. 2C:14–2—which the court had originally 

imposed as a consecutive term;
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• A concurrent term of 20 years' imprisonment with 

10 years of parole ineligibility for first-degree 

aggravated sexual assault by oral penetration, 

N.J.S.A. 2C:14–2; and

• A concurrent term of 5 years' imprisonment for 

third-degree unlawful possession of a knife, 

N.J.S.A. 2C:39–4(d).

[Ibid.] 

Hence, the aggregate sentence for the December 1981 offense was 60 years'

imprisonment, with 30 years of parole ineligibility. Ibid.

At the first resentencing, the trial court ordered that the sentences for both 

sets of sentences were to run consecutively. This produced a total sentence of 

110 years, with a 55-year cumulative period of parole ineligibility. Ibid.

B.

We also need not repeat here the analysis of applicable United States 

Supreme Court case law under the Eighth Amendment that is extensively set 

forth in the Zuber decision. Id. at 438-446. Distilled to its essence, those cases 

instruct that offenders who are minors, because of their immaturity, cannot be 

sentenced to life in prison without the possibility of parole (or the functional 

equivalent of such an "LWOP" sentence) unless the sentencing judge 

sufficiently takes into account "how children are different, and how those 
10 A-2677-18T2

differences counsel against irrevocably sentencing them to a lifetime in prison." 

Miller, 567 U.S. at 480; see also Zuber, 227 N.J. at 445-46. 

Those factors, which have come to be known as the "Miller factors," 

examine five considerations. Specifically, mandatory life without parole for a 

juvenile, or its functional equivalent, unconstitutionally:

[1] precludes consideration of his chronological age 

and its hallmark features — among them, immaturity, 

impetuosity, and failure to appreciate risks and 

consequences.

[2] It prevents taking into account the family and home 

environment that surrounds him — and from which he 

cannot usually extricate himself — no matter how 

brutal or dysfunctional.

[3] It neglects the circumstances of the homicide 

offense, including the extent of his participation in the 

conduct and the way familial and peer pressures may 

have affected him.

[4] Indeed, it ignores that he might have been charged 

and convicted of a lesser offense if not for 

incompetencies associated with youth — for example, 

his inability to deal with police officers or prosecutors 

(including on a plea agreement) or his incapacity to 

assist his own attorneys.

[5] And finally, this mandatory punishment disregards 

the possibility of rehabilitation even when the 

circumstances most suggest it.

[Zuber, 227 N.J. at 445 (quoting Miller, 567 U.S. at 

477-78).]
11 A-2677-18T2

These constitutional factors apply retroactively to juvenile offenders such 

as Zuber who received lengthy adult sentences before the United States Supreme 

Court issued its Miller opinion. Montgomery v. Louisiana, 577 U.S. ___, 136 

S. Ct. 718, 734 (2016); Zuber, 227 N.J. at 446. 

In its opinion remanding this matter for a second resentencing to apply the 

Miller factors, our Supreme Court issued clear instructions to the trial court. 

In light of the above analysis, Zuber is entitled to be 

resentenced. At a new sentencing hearing, the trial 

court should consider the Miller factors when it 

determines the length of his sentence and when it 

decides whether the counts of conviction should run 

consecutively. In short, the court should consider 

factors such as Zuber's "immaturity, impetuosity, and 

failure to appreciate risks and consequences"; "family 

and home environment"; family and peer pressures; 

"inability to deal with police officers or prosecutors" or 

his own attorney; and "the possibility of rehabilitation." 

The sentencing judge should also "view Zuber as he 

stands before the court" at resentencing and consider 

any rehabilitative efforts since his original sentence. 

[Zuber, 227 N.J. at 453 (citations omitted).]

As already noted, the Court's instructions also included the requirement 

to apply a "heightened level of care" when deciding whether to sentence Zuber 

to multiple consecutive sentences. Id. at 430. 
12 A-2677-18T2

C.

With this backdrop in mind, we discuss the record that was developed at 

the second resentencing proceedings on remand.

At the September 6, 2018 remand hearing, the trial court heard 

presentations from defense counsel, the prosecutor, Zuber, Zuber's family 

members and Pamela Benjamin from the New Jersey Parents Caucus/Juvenile 

Justice Initiative. Neither victim appeared, as one was deceased and the other 

could not be located. 

The trial court also considered: a May 24, 2018 sex offender evaluation; 

an August 17, 2018 sexually violent predator risk assessment; certifications 

showing the prison programs Zuber had completed; two undated letters from 

Zuber; and letters from Zuber's family requesting leniency. 

Dr. Mark Frank, a licensed psychologist and Forensic Mental Health 

Clinician who conducted a sex offender evaluation of Zuber, reported in May 

2018 that Zuber admitted to sexually assaulting the first victim. He said that he 

had sexually assaulted the first victim at the urging of his friends who were in 

their twenties and that while he knew what he was doing was wrong, he wanted 

to fit in.

With respect to the assault of the second victim, Zuber said he and his 
13 A-2677-18T2

friends were joyriding in two stolen cars when his friends stopped and forced 

her inside the car. Zuber said he was in a different car and did not assault her. 

His friends implicated him because they believed he would receive a lesser 

sentence as a juvenile. According to Dr. Frank: "He expressed what appeared 

to be sincere remorse" for his behavior. 

Zuber admitted to Dr. Frank to having a "volatile temper when he was 

younger" but said that he had learned to control it. He also admitted to "hanging 

with the wrong crowd" and committing crimes when he was younger, although 

he downplayed the seriousness of his crimes to some extent, saying: "I was 

robbing bikes and skateboards," "[n]othing real hard." Thinking about the 

crimes he had committed, he said: "Looking back at that kid now, I would lock 

that kid up . . . I'm a completely different person now. It was just horrible. The 

way I live my life now is totally different. Now, I'm doing everything the right 

way." 

Dr. Frank noted that Zuber had "dedicated himself to helping younger 

prison inmates adapt successfully to their imprisonment and said he tries to 

guide them toward living a more prosocial, productive life." Zuber hoped to 

continue his work with youth upon release.

Zuber described himself as "very easygoing," "very meek and 
14 A-2677-18T2

unassertive," with "difficulty standing up for himself." The aspect of his life for 

which he was most guilty was "[w]hat happen[ed] in the past when [he] was a 

kid." On a test evaluating his "interest in and motivation for treatment" he 

scored "somewhat below average compared to adults in the general population" 

and "substantially lower than is typical of people in therapy." 

Zuber showed low interpretive cognitive ability on a psychological test. 

On a test that did not require reading, he scored in the average range. His 

estimated IQ was "at the 26th percentile." He showed no signs of psychosis or 

neurological impairment, and "[h]e denied any current interest in forced sexual 

practices" and did not provide "bizarre or irrational responses on the Sexuality 

Questionnaire." 

To aid in assessing Zuber's risk of committing another sex offense, Dr. 

Frank administered the Static-99R, which "is an actuarial tool with moderate 

accuracy in ranking offenders according to their relative risk for sexual 

recidivism, without regard to factors such as type or severity of sexual offense." 

Assuming that Zuber would be released at his current age, Zuber fell within the 

above average risk category. However, Dr. Frank wrote "that the rate, 

confidence interval and nominal category apply to the group and not to Mr. 

Zuber, in particular. The degree to which the routine sample is congruent with 
15 A-2677-18T2

characteristics of New Jersey offenders or adolescent offenders is unclear." 

Further, the test result had to be "interpreted with caution" because 

according to the Static-99R Coding Rules Manual, the instrument's ability to 

predict recidivism rates for juvenile offenders was unclear. The Manual 

instructed: 

There is a very real theoretical question about whether 

juvenile sex offending is the same phenomena as adult 

sex offending in terms of its underlying dynamics and 

our ability to effect change in the individual, with 

research increasingly concluding that adults and 

adolescents who commit sex offenses are meaningfully 

different . . . In general, the research literature leads us 

to believe that adolescents who commit sex offenses are 

not necessarily younger versions of adult sex offenders. 

In comparison to adult sex offenses, the sex offenses 

committed by juveniles are more likely to involve peers 

as co-offenders, lack planning, and lack indicators of 

deviant sexual interests. Developmental, family and 

social factors would be expected to impact on 

recidivism potential. We have reason to believe that 

people who commit sex offenses only as 

children/young people are a different profile than adults 

who commit sex offenses. In cases such as these, we 

recommend that Static-99R score be used with caution 

and only as part of a more wide-ranging assessment of 

sexual and criminal behavior.

Dr. Frank concluded that 

there was no evidence to be able to conclude that Mr. 

Zuber felt irresistibly compelled to commit the sex 

offenses for which he is incarcerated. His offense 

behavior appears to have resulted from a number of 
16 A-2677-18T2

factors including immaturity, poor judgment, negative 

peer influence, low self-esteem and an antisocial 

personality orientation.

Given the absence of a clear finding of compulsive 

sexual behavior, Mr. Zuber is not eligible for 

sentencing under the purview of the New Jersey Sex 

Offender Act. 

On two dates in July 2018, Dr. Kristi Corcoran, Psy.D., interviewed Zuber

for a sexually violent predator risk assessment. Again, he denied sexually 

assaulting the second victim but admitted to assaulting the first victim. He said 

that he and his friends were driving in a car when they saw the first victim's car 

at the side of the road. His friend stopped to help her but then "all good 

intentions went crooked . . . things got out of hand . . . went downhill." His codefendants said they were going to rob her "and then things went totally 

sideways." His friends pressured him to sexually assault her, telling him that he 

could not "be with us" if he refused. He denied being sexually aroused by the 

assault, expressed remorse for his actions and said, "the whole thing was just 

terrible . . . disgusted with the whole thing." He said that after his grandmother 

died twenty-seven years ago, he decided "I need to get my life together" and 

"take responsibility for everything I did." He said he was "truly sorry" for his 

actions.

Dr. Corcoran wrote that, according to the probation department, Zuber's 
17 A-2677-18T2

juvenile record was "one of if not the most extensive juvenile records in the 

Essex County history." His record began at age ten with a truancy charge and 

escalated to thirty-eight delinquency complaints between the time he was fifteen 

and seventeen, which included burglary and robbery charges. He did not comply 

with probation and escaped from a juvenile detention facility. The 

"overwhelming majority of victims" were women. 

According to Dr. Corcoran, Zuber minimized his criminal behavior, 

explaining that everyone he associated with was older and he usually served as 

the look-out or driver of the get-away car because he "was too little." He denied 

escaping from the youth detention facility, saying that the facility was more like 

a campus and he simply walked away. He also denied that most of his victims 

were women.

Zuber denied to Dr. Corcoran that he had any deviant sexual interests or 

fantasies. Besides the first victim, he reported having sexual relations with three 

girls around his age when he was a teenager. 

Dr. Corcoran also administered the Static-99R instrument to assess 

Zuber's risk of reoffending. Like Dr. Frank, Dr. Corcoran underscored that the 

results should be "interpreted with caution" because "[j]uvenile offenders are 

meaningfully different than adult sex offenders and the danger in using Static-
18 A-2677-18T2

99R is that it may be over-estimating their risk of re-offense." Zuber again 

scored in the above average category for risk of reoffending.

Dr. Corcoran noted that while in prison, Zuber had incurred no major 

infractions, and he completed a number of programs aimed at changing negative 

behavior and obtaining skills. He also consistently maintained a sanitation job 

and supervised a crew of men. 

Dr. Corcoran concluded that Zuber's minimization of his juvenile criminal 

conduct "may suggest the presence of ongoing antisocial attitudes," which is a 

risk factor for "general criminality and is also associated with sexual recidivism 

in related research." But Dr. Corcoran did not believe that Zuber was a sexually 

violent predator who required treatment prior to reentering society. She 

suggested that parole supervision would likely be beneficial upon release. 

In the first letter that Zuber submitted to the trial court for consideration 

in the second resentencing, he explained how prison had taught him 

responsibility and remorse. He discussed the sanitation job that he acquired 

soon after his incarceration, which developed into a supervisory position that 

required him to "lead a crew of five men." He also discussed two programs he 

was taking to aid in his decision-making process entitled "Thinking for a 

Change" and "Cage Your Rage." He expressed a desire to positively influence 
19 A-2677-18T2

young inmates and showed remorse and understanding for his actions.

In his second letter, Zuber wrote that he had a "full understanding" of his 

actions, held himself accountable for them and wished to apologize to his 

"victims" and his family. He wrote:

Everyday for the past thirty years of my life there has 

come a point within the day when I couldn't distract 

myself with anything that went on behind these walls 

and I found myself alone to face my thoughts. When I 

closed my eyes I was that young reckless child again. 

I've asked him time and time again why, but he has no 

answer for me. I would tell him that you were raised 

by women and the things that you did were wrong and 

that's why your mother, aunts and other family 

members don't come see you now, they are ashamed of 

you and rightfully so. Sometimes I thought that if I 

stayed awake or didn't lock inn [sic] that I wouldn't 

have to face him again or have those conversations with 

him but then I realized that I couldn't hide and that this 

child will always be a part of me and he needed to be 

healed, I needed to be healed. It was these 

conversations that have helped me to move forward and 

see that I was a confused, angry, and most importantly 

hurt child. As a man I know that my pain doesn't give 

me the right to project my feelings onto others. I say 

this with the full understanding of the pain that I caused 

all of my victims. If I see the things I see and feel the 

way I feel when I close my eyes there is no doubt in my 

mind that my victims have gone through worse. I don't 

know if apologizing could ever help but I am sorry for 

my actions. . . . [A]s a man I am still held accountable 

for those actions and after thirty years of confinement I 

feel that I am ready to re-enter society but I [k]now that 

because of my actions I gave up [the] right to make that 

determination.
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With respect to Miller factor one (lack of maturity and ability to appreciate 

risks), defense counsel urged the court to find that at age seventeen Zuber failed 

to appreciate the nature and consequences of his actions. Counsel quoted from 

a January 6, 1984 Avenel report submitted shortly after his convictions (not 

included in the record on appeal) that said Zuber "does not learn from 

experience. He has no sense of perspective, and lives almost exclusively in the 

present." 

On Miller factors two and three (family and home environment and extent 

of Zuber's participation in the crime and the way familial and peer pressures 

may have influenced him), counsel said that Zuber was born to a fourteen-yearold mother, and he never knew his father. His mother had two children with 

another man who was a long-distance truck driver and "was never around." She 

was rarely home because she worked long hours and attended nursing school. 

Zuber was forced to raise his younger brothers, and no one raised him. 

By age ten, Zuber was involved in the juvenile justice system for truancy. 

By either the ninth or tenth grade Zuber dropped out of school and was 

committing crimes in the middle of the night. He claimed that he was influenced 

by older boys, and with respect to the sexual assaults in this case, counsel 

underscored that one of the co-defendants was eighteen years old. Counsel 
21 A-2677-18T2

noted that this co-defendant and another co-defendant had already completed 

their sentences. 

On Miller factor four (ability to deal with police and attorneys) counsel 

questioned why Zuber did not enter a plea agreement with the State, particularly 

since the evidence against him was overwhelming and included testimony from 

co-defendants. Counsel also questioned the propriety of the verdict that the jury 

had reached after only fifteen minutes of deliberation, and which had formed the 

basis for trial counsel's motion for a new trial. He underscored that Zuber did 

not appeal that decision or either of his convictions and urged the court to find 

that these circumstances showed that Zuber did not appreciate the nature of the 

charges and evidence against him and was unable to effectively aid in his 

defense. 

On the final Miller factor (possibility of rehabilitation), counsel claimed 

that Zuber had matured into a "calm" and "responsible" fifty-four-year-old man 

"with an understanding of the harm" he had caused. Counsel argued that both 

were reflected in two letters that Zuber had submitted to the court expressing 

remorse and concern for his victims and their families and discussing the 

internal process he had gone through to understand why he had committed such 

horrible crimes as a child. 
22 A-2677-18T2

Counsel stressed that Zuber never had a drug or alcohol problem and was 

not under the influence of either at the time of the crimes. He also did not suffer 

from any mental problems and he was not a compulsive and repetitive sex 

offender and did not pose a threat to society. 

Zuber's prison record was described by his counsel as "excellent." He 

worked at various locations as a supervisor in the sanitation unit, and he 

completed courses to better himself and prepare for release. In the last elevenand-one-half years he had no infractions, and the few that he had prior to that 

were for minor offenses like possession of a water bottle, hair clippers, zip ties 

and a Walkman radio. 

With respect to Zuber's plans upon release, counsel said that Zuber had 

strong family support and that his brother had agreed to give him a place to live, 

and his nephew had agreed to give him a job. Counsel requested the court 

impose a sentence that would allow for Zuber's immediate release or release in 

the near future.

The State asserted that while Zuber showed remorse for his actions, he 

continued to deny that he had sexually assaulted the second victim. It disputed 

defense counsel's claim that at age seventeen Zuber did not appreciate the 

consequences of his actions, underscoring his extensive history with the juvenile 
23 A-2677-18T2

justice system. The State noted that when Zuber committed these crimes, he 

was an escapee from a juvenile detention facility. The State also disputed 

Zuber's claim that he was influenced by others because the evidence 

overwhelmingly showed that Zuber was the "ringleader" of these crimes and the 

first to sexually assault both victims. 

The State conceded that Zuber's prison record was "excellent" and that his 

prospects for successful adjustment after release were good. 

The State urged the trial court to find that concurrent terms were not 

appropriate because the crimes involved two separate victims of kidnapping and 

gang rape. It suggested decreasing the length of the sentences to give Zuber the 

benefit of the mitigating youth factors, while also ensuring that Zuber remains 

in prison for additional years to protect society. 

Zuber addressed the trial court at the remand hearing, apologizing to the 

victims and their families. He said that he could not explain why he had 

committed the crimes but claimed that he was a changed man. He said: "There 

is no excuse for what I did, so I offer none because it would only be disrespectful 

and self-serving. I hope that life has somehow restored to them, that which I 

robbed [of] them." He said that as a child, he did not understand what love was, 

and he lacked self-worth. He now understood that he had taken from his victims 
24 A-2677-18T2

"exactly what was missing in myself. I took their ability to trust in others, which 

I now understand to be crucial to a happy life." He said he was "fully aware and 

remorseful" of his actions. 

With respect to Zuber's family, his brother Maurice requested leniency for 

Zuber in resentencing, explaining that Zuber was a changed man. He also said 

that upon release Zuber would live with him and his family. Zuber's cousin 

Quesean Williams also asserted that Zuber had changed, and he promised to 

employ Zuber at his trucking company upon release. Zuber's aunt said that when 

Zuber was a teenager, his mother tried to get him the help he needed, but the 

family court did not help her. 

Benjamin from the New Jersey Parents Caucus/Juvenile Justice Initiative 

said that Zuber had been working with the organization for the past three-to-four 

years and that he was "an outstanding member" of the caucus. He was 

"committed to improving the lives of those involved with the juvenile justice 

system." She said he "has proven that he is committed to bettering his life and 

is taking legitimate steps towards rehabilitation." He "has not just wanted what 

is best for himself, but he has encouraged those around him to seek out [the] 

organization so they [have] a chance to receive the support and strength to 

improve their situation." 
25 A-2677-18T2

The judge reserved decision but did observe that, based on Zuber's prison 

record and sex-offender evaluations, he "does not fall within that slim class of 

juvenile defendant[s] that cannot be rehabilitated." 

D.

On January 14, 2019, the trial court held another hearing where it placed 

some findings on the record and imposed sentence. It later supplemented those 

findings with its written decision.

The court began by saying that "this has to be the most difficult case [the 

court has] ever had, because on one hand" the crimes Zuber committed were 

"almost war crimes," but on the other hand Zuber "is not the same person that 

he was at age seventeen." 

With respect to the Miller factors, the court gave little weight to factor 

one (the juvenile's lack of maturity and undeveloped sense of responsibility 

leading to reckless behavior) based on Zuber's extensive juvenile record, which 

included "six adjudications for offenses that escalate[d] in severity over time," 

and the fact that he was an escapee when he committed the two sexual assaults 

in this case. Further, Zuber "seemed to have been the leader or instigator of both 

incidents," which, the court noted was different from the fourteen-year-old 

defendant in Miller, who "was swept up in a robbery he had never planned to be 
26 A-2677-18T2

a part of." Unlike that juvenile, Zuber "had already had several adjudications 

for robberies and similar crimes and knew of the consequences." 

In its written decision, the court added that while the status of being a 

juvenile mitigated punishment in many cases, 

[t]his court has a hard time believing, however, that 

immaturity or recklessness can be blamed for the 

abduction and sexual assault of a helpless female. It is 

even less persuasive that these characteristics mitigate 

the defendant doing it again [a] little over a week later 

to a different victim in just as violent a fashion. This 

court also cannot find that punishing this sort of crime 

with lengthy prison terms would not deter juveniles 

from this kind of depraved conduct simply because of 

their impetuous nature. 

On Miller factor two (family and home environment and influence by 

others), the court recognized that Zuber's family situation did not include an 

adult to parent Zuber on a regular basis. This appeared to be "the main reason 

why [Zuber] was in the streets and began committing crimes at such a young 

age." However, the court said that Zuber was not "abused or mistreated," and 

there was no evidence that he witnessed more violence as a child than any other 

child in a similar environment. The court concluded in this regard: "For the 

acts as reprehensible as [Zuber's], the mere subpar upbringing has a limited 

effect in the Court's decision." 

The court added that while Zuber's "upbringing may very well mitigate 
27 A-2677-18T2

many of the robberies and other crimes he committed, . . . it is extremely difficult 

to assess how much of a factor a less-than-ideal upbringing can be when we are 

dealing with the horrific crimes that Mr. Zuber committed. For acts as 

reprehensible as Mr. Zuber's, a merely subpar upbringing has a limited 

mitigating effect." 

With respect to Miller factor three (extent of Zuber's participation in the 

crime and the way familial and peer pressures may have influenced him), the 

court found that Zuber was "either the instigator or leader or both" and "was 

heavily involved" in these crimes. Thus, this factor had "limited" applicability. 

In its written decision, the court said this factor had "no mitigating effect." 

With respect to Miller factor four (inability to deal with police officers, 

prosecutors, and his own counsel) the court underscored that Zuber "was no 

stranger to the juvenile criminal justice system." The court said that it was 

unclear why Zuber chose to go to trial when his co-defendants had agreed to 

testify against him. It was also unclear whether the State had offered him a plea 

agreement. Because the court did not know the answer to those questions, it 

said that it would give Zuber the benefit of the doubt and conclude that Zuber

may have accepted a plea offer if he had been more mature. 

Finally, on Miller factor five (possibility of rehabilitation), the court found 
28 A-2677-18T2

that Zuber had demonstrated rehabilitation. In the thirty-five years that he had 

been incarcerated, he had incurred only a few minor infractions, the last of which 

was a 2007 infraction for possession of a water bottle. He held multiple jobs in 

prison that required leadership skills and responsibility. He also completed 

programs aimed at preparing inmates to rejoin society. Indeed, the State 

conceded that his prison record was "excellent." Zuber also acknowledged his 

guilt and apologized to both victims. Upon release, he had a plan to live with 

his brother and work for his cousin. 

The court noted that in Zuber's initial sex offender evaluations which 

occurred in 1983 and 1984 (neither of which is in the record on appeal), Zuber

maintained his innocence. However, at his second resentencing hearing he 

accepted responsibility for his actions and apologized to all victims. 

As the court also noted in relation to the May 2018 evaluation, Dr. Frank 

explained that Zuber's crimes appeared to "have resulted from a number of 

factors including immaturity, poor judgment, negative peer influence, low selfesteem and an anti-social personality orientation" and that he was not eligible 

for sentencing under the New Jersey Sex Offender Act. Dr. Corcoran similarly 

concluded that Zuber showed no signs of deviant sexual interest or arousal, 

which suggested a low risk for reoffending. 
29 A-2677-18T2

In summarizing the Miller factors as applied to Zuber, the court wrote:

It is clear that Mr. Zuber is not the violent and troubled 

young [man] that he once was almost 38 years ago. The 

Court stated in Roper that it is difficult even for experts 

to look at a juvenile's crimes and decide that the 

juvenile is irreparably corrupted, as opposed to the 

crimes being a product of the transient immaturity that 

accompanies youth. Mr. Zuber is an example of this 

difficulty. He had a troubled childhood in which he 

acquired dozens of juvenile complaints. He committed 

two abhorrent crimes - the facts of which being heinous 

and shocking enough to outweigh most mitigating 

factors and put him in prison for the last 35-plus years. 

And yet, he stands before us a seemingly matured and

rehabilitated man. Mr. Zuber has demonstrated that he 

is likely fit to rejoin society.

[emphasis added.]

With respect to the Yarbough guidelines,2the court found that they 

weighed in favor of consecutive terms. On the first guideline (whether the 

crimes and their objectives were independent), the court said: "These were two 

separate aggravated sexual assaults, gang sexual assaults, separated by one 

week." But in the written decision, the court said that the sentence for the sexual 

assault of the second victim should run concurrently with the kidnapping 

conviction because the kidnapping was not independent of the sexual assault.

The court did not believe this to be the case for the sexual assault of the first 

2

 Yarbough, 100 N.J. at 643-44. 
30 A-2677-18T2

victim because that kidnapping and rape occurred at different times, in different 

locations and with different objectives. The court believed it could "be assumed 

from the facts that the decision to abduct [the first victim] was a spontaneous, 

impetuous decision," but in the second attack, "[i]t is likely that the objective of 

[the] kidnapping was to commit another sexual assault." With respect to 

Yarbough guidelines two through five (whether the crimes involved separate 

acts of violence at different times against different victims and whether the 

convictions were numerous), the court found that Zuber had committed two acts 

of violence against two victims at two different times and that the convictions 

were numerous. The fact that the crimes involved two victims weighed heavily 

in favor of consecutive terms.

With respect to the aggravating and mitigating sentencing factors, the 

court noted that at the initial sentencing no mitigating factors existed, and 

aggravating factors one (nature and circumstances of the offense), two 

(seriousness of harm to the victim), three (risk defendant will reoffend), six 

(extent of defendant's prior record) and nine (need to deter) were found. Based 

on the current circumstances, the court found that aggravating factors one, two, 

six and nine still applied, that aggravating factor three no longer applied and 

mitigating factor nine (defendant is unlikely to reoffend) was now applicable. 
31 A-2677-18T2

In conclusion, the court said that although Miller factors one through four 

did not weigh in Zuber's favor, factor five "significantly" weighed in his favor. 

To account for that factor, the court (1) reduced the sentence on the seconddegree robbery of the first victim from ten years with a five-year parole bar to 

six years with a three-year parole bar, and (2) changed the consecutive term for

the aggravated sexual assault of the second victim by vaginal penetration to a 

concurrent term. 

II.

A. 

On this appeal, Zuber argues his resentence is unsupported by a rationale 

that clearly explains the court's basis for imposing maximum terms on nearly all 

convictions, fifty-percent parole bars on all sentences except the weapons 

offense, and five consecutive terms, for an aggregate sentence of 86 years of 

imprisonment with 43 years of parole ineligibility.

Zuber argues that, in imposing five consecutive terms, the court failed to 

apply the required "heightened" Yarbough standard prescribed by the Supreme 

Court. He contends that, in light of his rehabilitative efforts and the court's 

finding that he was not incorrigible, he should be released from prison now, or, 

at the very least, after a prompt parole hearing.
32 A-2677-18T2

Zuber concedes that two of the consecutive terms were appropriate 

because he committed two sexual assaults against two victims at different times, 

but disputes that the remaining three consecutive terms were appropriate. 

Indeed, he asserts that the robberies "were something of an afterthought," and 

notes that the court did not even mention those crimes in orally imposing the 

revised sentence.

B. 

As a general matter apart from constitutional mandates, a sentence should 

only be disturbed when the trial court failed to follow sentencing guidelines, 

when the aggravating and mitigating factors are not supported by the evidence, 

or when the facts and law show "such a clear error of judgment that it shocks 

the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). Accord State 

v. Case, 220 N.J. 49, 65 (2014). In weighing the aggravating and mitigating 

factors, the court must conduct a qualitative, not quantitative, analysis and

provide a "clear explanation" of how it weighed the factors and applied them to 

the sentencing range. State v. Fuentes, 217 N.J. 57, 73 (2014). The court may 

not "double count" a fact that established an element of the offense as a basis to 

support an aggravating or mitigating factor. Id. at 74-75. However, the court 

may consider conduct in excess of that required to commit the crime without 
33 A-2677-18T2

offending the rule against double counting. Id. at 75. "[I]f the trial court fails 

to identify relevant aggravating and mitigating factors, or merely enumerates 

them, or forgoes a qualitative analysis, or provides little 'insight into the 

sentencing decision,' then the deferential standard will not apply." Case, 220 

N.J. at 65 (quoting State v. Kruse, 105 N.J. 354, 363 (1987)).

In considering the sentencing factors, "a defendant should be assessed as 

he stands before the court on the day of sentencing." State v. Jaffe, 220 N.J. 

114, 116 (2014). In the context of a remand, unless the reviewing court limited 

the resentencing procedure, the sentencing court must consider the defendant's 

post-offense conduct, including any conduct that occurred after the initial 

sentence began. State v. Randolph, 210 N.J. 330, 354 (2012). "The State, 

likewise, is not limited in its presentation. The only restriction placed on both 

parties is that the evidence presented be competent and relevant." Case, 220 

N.J. at 70.

Where the aggravating factors preponderate, the term should be at the high 

end of the sentencing range, and where the mitigating factors preponderate, the 

sentence should be at the low end of the range. Fuentes, 217 N.J. at 73. N.J.S.A. 

2C:43-6(b) permits the court to impose a discretionary parole bar not to exceed 

one-half of the sentence imposed if the court is "clearly convinced that the 
34 A-2677-18T2

aggravating factors substantially outweigh the mitigating factors." 3 Pursuant to 

N.J.S.A. 2C:44-1(f)(1), the court must "specifically place on the record the 

aggravating factors . . . which justify the imposition of a minimum term." 

Discretionary parole bars are the exception and should not be routinely imposed. 

Case, 220 N.J. at 66.

Having considered these principles and the constitutional factors 

mandated by the Supreme Courts of the United States and this State, we 

conclude the trial court generally adhered to the law in resentencing Zuber, with 

one significant exception. That exception concerns the continued imposition of 

consecutive sentences for the two robbery counts, one of which is quite lengthy.

More specifically, we affirm the trial court's rejection of Zuber's request 

for immediate release based upon the finding of rehabilitation as to Miller factor 

five. Nothing in the United States Supreme Court's opinion in Miller or its 

related opinions instructs that this fifth factor is all-encompassing and 

dispositive. Nor did our own State Supreme Court make such a proclamation. 

3

 Except for the third-degree weapons offense, all of the crimes for which Zuber 

was convicted are now No Early Release Act ("NERA") crimes, subject to a 

mandatory eighty-five percent parole bar. But Zuber is not subject to NERA 

because that statute was not enacted until 1997, long after Zuber's crimes 

occurred. L. 1997, c. 112. Because NERA would impose a harsher sentence 

than the one Zuber faced at the time of his crimes, the Ex Post Facto Clause 

prohibits its application to Zuber.
35 A-2677-18T2

To be sure, what the trial court described as the juvenile offender's "likely" 

capacity for rehabilitation is of great importance. But that cannot nullify the 

significance of the other four Miller factors, the first three of which Zuber does 

not even challenge. We also agree with the trial court that the evidence on factor 

four (the alleged "incompetencies of youth") weighs in the State's favor, not the 

defense. 

That said, we do not minimize Zuber's admirable track record in 

improving his behavior during his many decades in prison, and in largely, if not 

fully, coming around to acknowledge his very serious wrongdoing. The trial 

court rightly took those positive developments into account by considerably

reducing the aggregate parole ineligibility period by a dozen years from 55 years 

to 43 years. 

However, we are not persuaded that the trial court sufficiently carried out 

the Supreme Court's mandate to apply "heightened" care with respect to the 

continued imposition of certain consecutive aspects to the sentences, 

particularly as to the two robbery counts.

Under state law, a sentencing court must consider the following guidelines 

in deciding whether to run sentences consecutively or concurrently:

(1) there can be no free crimes in a system for which 

the punishment shall fit the crime; 
36 A-2677-18T2

(2) the reasons for imposing either a consecutive or 

concurrent sentence should be separately stated in the 

sentencing decision; 

(3) some reasons to be considered by the sentencing 

court should include facts relating to the crimes, 

including whether or not: 

(a) the crimes and their objectives were predominantly 

independent of each other; 

(b) the crimes involved separate acts of violence or 

threats of violence; 

(c) the crimes were committed at different times or 

separate places, rather than being committed so 

closely in time and place as to indicate a single period 

of aberrant behavior; 

(d) any of the crimes involved multiple victims; 

(e) the convictions for which the sentences are to be 

imposed are numerous;

(4) there should be no double counting of 

aggravating factors; 

(5) successive terms for the same offense should not 

ordinarily be equal to the punishment for the first 

offense; and

(6) there should be an overall outer limit on the 

cumulation of consecutive sentences for multiple 

offenses not to exceed the sum of the longest terms 

(including an extended term, if eligible) that could be 

imposed for the two most serious offenses.

[Yarbough, 100 N.J. at 643-44.]
37 A-2677-18T2

Yarbough guideline number six has been superseded by a 1993 amendment to 

N.J.S.A. 2C:44-5(a), which provides that there "shall be no overall outer limit 

on the cumulation of consecutive sentences for multiple offenses." 

The sentencing court should qualitatively, not quantitatively, weigh the 

factors set forth in Yarbough guideline three. Carey, 168 N.J. at 427. The court 

must separately state the reasons for each consecutive term. State v. Miller, 108 

N.J. 112, 122 (1987); Yarbough, 100 N.J. at 643-44. A court may impose 

consecutive sentences even if "a majority of the Yarbough factors support 

concurrent sentences." Carey, 168 N.J. at 427-28. 

Zuber directs sentencing courts to "exercise a heightened level of care 

before imposing multiple consecutive sentences on juveniles." 227 N.J. at 450. 

While the Zuber Court did not discuss in detail what it meant by this, it couched 

the statement in terms of the "concerns that Graham and Miller highlight" and 

the "overriding importance of" the Miller decision. Ibid. We agree with Zuber 

that the trial court did not demonstrably apply the Yarbough guidelines with 

such a heightened level of care to its decision to continue to impose five 

consecutive terms, and particularly as to the two robbery counts. 

As our State Supreme Court explained years ago in a different Miller case, 

factors relied on to sentence a defendant to the 

maximum term for each offense should not be used 
38 A-2677-18T2

again to justify imposing those sentences 

consecutively. Where the offenses are closely related, 

it would ordinarily be inappropriate to sentence a 

defendant to the maximum term for each offense and 

also require that those sentences be served 

consecutively, especially where the second offense did 

not pose an additional risk to the victim. The focus 

should be on the fairness of the overall sentence, and 

the sentencing court should set forth in detail its reasons 

for concluding that a particular sentence is warranted.

[108 N.J. at 122.] 

Here, the trial court relied on the same aggravating and mitigating factors 

to justify consecutive terms as it relied on to impose maximum and near 

maximum terms with maximum parole bars.

With respect to the crimes against the first victim, the court imposed 

consecutive terms for the kidnapping, second-degree robbery, and sexual assault 

by vaginal penetration, explaining that the first kidnapping was a separate crime

because "the sexual assault took place at a different location and later in time." 

With respect to the crimes against the second victim, the court imposed 

consecutive terms for the kidnapping and first-degree robbery convictions and 

ran the sexual assault and weapons sentences concurrently with those terms. The 

court specifically found that "it is likely that the objective of [the second] 

kidnapping was to commit another sexual assault," leading to a conclusion that 
39 A-2677-18T2

"the [second] kidnapping and sexual assault crimes were one continuous act."4

The trial court did not show that it exercised "heightened care" in 

maintaining consecutive sentences and consecutive parole ineligibility periods 

for the two robberies. The only portion of relevant written amplification is a 

sentence at the end of the paragraph discussing the December 1981 second 

indictment, after explaining why the second kidnapping and the second sexual 

assault were "one continuous act." The sentence reads: "I do not find this 

[continuity] for the robbery as well, however, as the monetary gain is a distinct 

objective and involved its own threats of violence." It is unclear whether this 

sentence was intended to pertain to the first robbery in November 1981 as well.

The court also did not explain why it felt the Miller youth factors warranted a 

reduction of Zuber's sentence for only the first robbery from ten to six years, 

while leaving the twenty-year sentence on his second robbery intact.

With all due respect to the judge who undertook this understandably

difficult responsibility on remand, we are not satisfied that this discussion 

4

 On remand, a trial court may change a concurrent term to a consecutive term 

without violating double jeopardy protections so long as the aggregate sentence 

does not exceed the current aggregate sentence. State v. Kosch, 458 N.J. Super. 

344, 351-52 (App. Div.), certif. denied, 240 N.J. 20 (2019). Thus, the court was 

authorized to change the sexual assault sentence as to the second victim to run 

consecutively to the sexual assault sentence as to the first victim, as Zuber 

concedes would be justified. 
40 A-2677-18T2

suffices to fulfill the Supreme Court's mandate for heightened care. We 

recognize that, under a traditional Yarbough analysis not involving a juvenile 

tried as an adult, it may be sufficient for a sentencing judge to state that a robbery 

has a "distinct objective" and involved distinct "threats of violence" from other 

crimes the youth committed that same day. But this special constitutional 

context also requires the court to consider the real-time confinement impacts of 

stacking these robbery sentences in such a fashion upon a juvenile offender

already sentenced to decades of imprisonment on other counts. 

Surely the most serious offenses here are the first-degree sexual offenses 

and the kidnappings. They involved horrendous crimes committed against the

person. By comparison, the robberies were hastily committed after the 

kidnappings and assaults. The robberies arguably did not place the victims in 

substantially more danger than the initial violent and brutal crimes. The trial 

court's sentencing analysis does not adequately elaborate upon those 

characteristics with the "heightened" care mandated by the Supreme Court. 

Under the revised sentences imposed by the trial court, the consecutive 

terms for the two robberies result in an additional three years of parole 

ineligibility on the first indictment, and another ten-year parole disqualifier on 

the second indictment. Although we do not resolve the propriety of those 
41 A-2677-18T2

additional thirteen years of parole ineligibility here, it is necessary to remand 

the matter for a third resentencing to justify, with "heightened" care, those realtime consequences. 

Zuber's looming eligibility for release five years from now does not make 

a remand for this limited purpose an inconsequential exercise. If, 

hypothetically, the robbery sentences were either made concurrent to other 

additional offenses, or left consecutive but reduced in length, Zuber could 

potentially be eligible for a parole hearing before his current projected date in 

2025. Again, we do not forecast what outcome on remand will be 

constitutionally satisfactory and instead leave that to the trial court's careful 

"heightened" reassessment.

All of Zuber's remaining arguments lack sufficient merit to warrant 

discussion. R. 2:11-3(e)(2).

Affirmed in part and remanded in part. We do not retain jurisdiction.