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

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1928-16T1

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).
3 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).
4 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).
5 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.
6 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." 
7 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 
8 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 bargainedfor 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. 
9 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."
10 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.