SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1868-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMY B. PORTILLO,

Defendant-Appellant.

_______________________

Argued March 7, 2022 – Decided August 18, 2022

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 13-09-0805.

Margaret McLane, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Margaret McLane, of 

counsel and on the briefs).

Catlin A. Davis, Deputy Attorney General, argued the 

cause for respondent (Matthew J. Platkin, Acting 

Attorney General, attorney; Catlin A. Davis, 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NOT FOR PUBLICATION WITHOUT THE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.
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A jury convicted defendant Jermy B. Portillo of two counts of firstdegree robbery; one count of second-degree robbery; third-degree receiving 

stolen property; third-degree possession of a knife for an unlawful purpose; 

and fourth-degree unlawful possession of the knife in connection with a latenight street robbery committed with five others — one brandishing a machete

— of three men in Elizabeth. As we related in our opinion on defendant's 

direct appeal, the State proved defendant pressed a knife to the ribs of one of 

the men as he ordered him to empty his pockets, and similarly menaced 

another, demanding he also hand over his property. State v. Portillo, No. A0679-16 (App. Div. June 11, 2018) (slip op. at 12). Although also convicted 

of robbing the third man, defendant did not threaten him with the knife, as he 

had the man's companions. Ibid. 

Following the merger of the weapons and receipt of stolen property 

convictions, the judge sentenced defendant to the bottom of the range on each 

of the robbery counts, but ran the sentences consecutively, each subject to the 

periods of parole ineligibility and supervision required by the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2. Portillo, slip op. at 1-2. Defendant 

was thus sentenced to serve an aggregate twenty-five-year NERA term. Ibid. 
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We affirmed defendant's convictions and sentence on direct appeal, 

satisfied the judge's findings that aggravating factor nine, N.J.S.A. 2C:44-

1(a)(9), the need to deter, and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7),

no history of delinquency or criminality, were applicable and in equipoise

were supported by substantial evidence in the record. Id. at 12. We were also 

satisfied the judge's articulated reasons for imposing consecutive sentences 

were consistent with State v. Yarbough, 100 N.J. 627 (1985), noting the judge 

relied principally on there being three separate victims, two of whom 

defendant threatened with a knife. Portillo, slip op. at 13. We rejected 

defendant's reliance on Miller v. Alabama, 567 U.S. 460 (2012) and State v. 

Zuber, 227 N.J. 422 (2017), because defendant was not a juvenile when he 

committed the robberies, although he was only eighteen years old at the time. 

Portillo, slip op. at 14. Mindful of our standard of review, "we discern[ed] no 

abuse of discretion, departure from sentencing guidelines, or sentence that 

shocks the judicial conscience and warrants correction." Id. at 14-15.

The Supreme Court denied defendant's petition for certification. State v. 

Portillo, 236 N.J. 230 (2018). Defendant moved for reconsideration. While 

defendant's motion remained pending, the Court on August 7, 2019, sua sponte

remanded the case to the Law Division "for resentencing to consider the 
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fairness of the overall sentence" in light of State v. Cuff, 239 N.J. 321 (2019)

(remanding for resentencing to allow the trial court to consider whether 

offenses committed within the same criminal episode warrant consecutive 

sentences and whether making the sentences consecutive was consistent with 

the mandate that the judge consider the overall fairness of the aggregate 

sentence) and State v. Liepe, 239 N.J. 359 (2019) (reinstating consecutive 

sentences imposed by the trial court in a drunk driving case that killed one 

child, paralyzed another and severely injured another driver), both of which 

the Court had issued the previous day.

On the resentencing, counsel presented the court with an extensive

sentencing memo, arguing "[i]n light of the guidance provided in both Cuff

and Liepe," the court needed to "reconsider the fundamental fairness" of 

defendant's "aggregate sentence, with the recognition that the existence of 

multiple victims does not, on its own, create a presumption for the consecutive 

sentences" defendant received. Counsel argued that because all of the offenses 

of which defendant was convicted were part of a single criminal episode, 

concurrent, not consecutive, sentences were required. 

Defendant also presented the trial judge with the report of a 

developmental psychologist who opined that young adults between the ages of 
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eighteen and twenty "are more like individuals in early and middle 

adolescence in their behavior, psychological functioning, and brain 

development." Defendant maintained that "[m]any of the same immaturities 

that characterize the brains of individuals younger than 18, and that have been 

found to mitigate their criminal culpability, are characteristic of the brains of 

individuals from 18 through at least age 20" and it is thus "inappropriate to 

assign the same degree of culpability to criminal acts committed at this age to 

that which would be assigned to the behavior of a fully mature and responsible 

adult." 

Defense counsel argued it was "critical" the court consider defendant's 

youth and efforts at rehabilitation when considering the overall fairness of the 

sentence as directed by the Court. Emphasizing defendant was now ten years

older than when he committed his crimes, no longer a senior in high school, 

but a twenty-seven-year-old man, who had completed his GED, was well on 

his way to completing his associates degree, had acquired marketable skills in 

prison as an electrician and a plumber and was a devoted father to his six-yearold daughter. 

In making a broad policy argument, defense counsel insisted the judge 

analyze the statutory "aggravating and mitigating factors in light of the 
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characteristics inherent to young adults," arguing mitigating factor two, 

N.J.S.A. 2C:44-1(b)(2), that the defendant did not contemplate his conduct 

would cause or threaten serious harm, "should be given substantial weight 

when sentencing a young adult;" as should mitigating factor four, N.J.S.A.

2C:44-1(b)(4), substantial grounds tending to excuse or justify the defendant's 

conduct, although failing to establish a defense; mitigating factor eight, 

N.J.S.A. 2C:44-1(b)(8), that the defendant's conduct was the result of 

circumstances not likely to reoccur; mitigating factor nine, N.J.S.A. 2C:44-

1(b)(9), that the defendant's character and attitude indicate he is unlikely to 

commit another offense; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9),

the need to deter, among others. 

Looking at this defendant with an eye to his young age when he 

committed these crimes, defense counsel argued mitigating factor one, 

N.J.S.A. 2C:44-1(b)(1), applied because defendant's conduct did not cause 

serious harm; mitigating factor two applied because defendant did not 

contemplate his conduct would cause harm; mitigating factor four applied 

because defendant was influenced by his peers; mitigating factor seven, 

N.J.S.A. 2C:44-1(b)(7), still applied because defendant had no prior criminal 

record; mitigating factor eight applied because defendant had matured; 
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mitigating factor nine applied because defendant's character, demonstrated by 

his significant efforts to get an education, acquire marketable skills and pay 

attention to his emotional and psychological development in prison, indicated

he is unlikely to reoffend; and mitigating factor eleven, N.J.S.A. 2C:44-

1(b)(11), that imprisonment would entail excessive hardship to defendant or 

his dependents applied because defendant's family and his relationship with his 

six-year-old daughter "is irrevocably damaged" by his incarceration. Defense 

counsel also argued that defendant "[a]s a fully mature adult . . . is now able to 

appreciate the consequences of his actions and is much less likely to engage in 

risky behavior," making the need for specific deterrence no longer applicable

such that aggravating factor nine no longer applied. Defense counsel argued in 

view of the several strong mitigating factors and absence of any aggravating 

ones, the court should downgrade the sentence on the two first-degree robbery 

convictions to second-degree offenses, and that "[a]ny sentence greater than 

the minimum of five-years NERA is excessive."

In a thorough and thoughtful reconsideration of defendant's sentence, the 

judge acknowledged defendant's increased maturity, his efforts in prison and a

newly realized remorse missing from when he was first sentenced. The judge 

separately considered each mitigating factor urged by defendant, rejecting all 
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but mitigating factor seven. The judge rejected mitigating factors one and two, 

emphasizing that defendant threatened two of the victims with a knife. He 

rejected mitigating factor four, finding defendant's youth was not a substantial 

justification for his crimes. Although acknowledging the positive steps 

defendant had taken since he'd been imprisoned, the judge determined they did 

not support finding mitigating factors eight and nine. The judge rejected 

mitigating factor eleven, finding the hardship experienced by defendant and 

his family by his incarceration was not different from that suffered by others 

sentenced to prison. The judge found aggravating factor nine was still 

appropriate based on the need for individual deterrence and that it remained 

"in balance" with mitigating factor seven. 

Re-analyzing the Yarbough factors in light of the Court's re-examination 

of Yarbough in Cuff and Liepe, the judge determined he had previously given 

"too much weight" to there having been three separate victims. Looking at 

what defendant had accomplished in prison, "listening to where he's come to 

from where he's been," comparing defendant's thinking process to what it was 

when he was first sentenced, "and looking at that in contrast with these [new] 

cases," led the judge to conclude the sentences on the robbery counts should 

run concurrently not consecutively. Accordingly, the judge determined 
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defendant's aggregate sentence would be a ten-year NERA term, with a period 

of eight years, six months and two days' parole ineligibility.

Following defendant's resentencing, the Court, after considering the 

parties' briefs, denied defendant's motion for reconsideration of the order 

denying the petition for certification as well as his motion for oral argument 

and permitted defendant to challenge his sentence on remand in this court. 

This appeal followed.

Defendant raises the following issue for our consideration.

THE SENTENCING COURT'S FAILURE TO 

CONSIDER DEFENDANT'S YOUTH AT THE TIME 

OF THE OFFENSE AND HIS REHABILITATION 

OVER THE LAST TEN YEARS REQUIRES A 

REMAND FOR RESENTENCING.

A. Introduction.

B. Trial Courts Must Consider How Youth Affects 

All Relevant Aggravating And Mitigating Factors.

1. Young-Adult Defendants Tend To Be Less 

Able To Adequately Contemplate The Potential 

Harm Of Their Conduct.

2. A Young Defendant's Relative Difficulty In 

Assessing Consequences And Controlling 

Behavior Are Relevant To Whether There Are 

Substantial Grounds Tending To Excuse A 

Defendant's Conduct.
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3. A Young Adult's Criminal History Should Be 

Given Relatively Less Weight Because Of 

Young Defendants' Lesser Culpability And 

Capacity For Reform.

4. Young Adults Are Less Susceptible To 

Deterrence.

5. Young Adults Have A Greater Capacity For 

Rehabilitation And A Lessened Risk Of 

Recidivism.

C. Without Additional Guidance From This Court, 

Sentencing Courts Will Continue, As The Court Did 

Here, To Ignore The Effects Of Youth On The 

Applicable Aggravating And Mitigating Factors.

In his reply brief, he restates the issue as follows.

POINT I

THE SENTENCING COURT'S FAILURE TO 

CONSIDER DEFENDANT'S YOUTH AT THE TIME 

OF THE OFFENSE AND HIS REHABILITATION 

OVER THE LAST TEN YEARS REQUIRES A 

REMAND FOR RESENTENCING.

A. THIS SHOULD HAVE BEEN A FULL 

RESENTENCING.

B. JERMY'S YOUTH IS RELEVANT AND 

WAS NOT ADEQUATELY CONSIDERED.

Having reviewed the record, we reject those arguments as without 

sufficient merit to warrant any extended discussion in a written opinion. R.

2:11-3(e)(2). We agree with defendant that the Court's order "for resentencing 
11 A-1868-20

to consider the fairness of the overall sentence" in light of the Court's opinions 

in Cuff and Liepe demanded a full resentencing. See State v. Randolph, 210 

N.J. 330, 354 (2012) ("when 'reconsideration' of sentence or 'resentencing' is 

ordered after appeal, the trial court should view defendant as he stands before 

the court on that day unless the remand order specifies a different and more 

limited resentencing proceeding"); State v. Bellamy, 468 N.J. Super. 29, 39 

(App. Div. 2021) ("[w]hen an appellate court orders a resentencing, a 

defendant is ordinarily entitled to a full rehearing"). But we are also satisfied 

a full resentencing hearing is precisely what defendant got.

The trial judge obviously took the Supreme Court's order that he 

reconsider the overall fairness of defendant's sentence in light of Cuff and 

Liepe to heart, not viewing it as a veiled directive to merely reduce the 

sentence, which it obviously was not, but as an opportunity to undertake a new 

analysis of defendant and his crimes as he stood before the court on 

resentencing. Re-analyzing the aggravating and mitigating factors in light of 

defendant's arguments, and re-thinking the Yarbough factors, including 

consideration of the overall fairness of the sentence without a reflexive 

presumption that multiple victims require consecutive sentences, the judge 

thoughtfully concluded that sentences at the bottom of the range, running
12 A-1868-20

concurrently was a fair aggregate sentence for defendant's crimes. That 

change reduced defendant's overall sentence by fifteen years and reduced his 

parole ineligibility term by twelve years and nine months. 

Because defendant was of the age of majority when he committed his 

crimes, he was not entitled to the special considerations afforded juveniles. 

See State v. Comer, 249 N.J. 359, 384-85 (2022). We also reject defendant's 

argument that the court was obliged to analyze the statutory "aggravating and 

mitigating factors in light of the characteristics inherent to young adults," as 

inconsistent with the Code of Criminal Justice. On October 19, 2020, after 

defendant's resentencing, the Legislature amended N.J.S.A. 2C:44-1 to add 

new mitigating factor fourteen, precisely tracking the New Jersey Criminal 

Sentencing and Disposition Commission's recommendation to allow a judge to 

consider as a mitigating factor that "[t]he defendant was under 26 years of age 

at the time of the commission of the offense." N.J.S.A. 2C:44-1(b)(14); State 

v. Lane, 251 N.J. 84, 92-93 (2022). Accordingly, the Legislature has dictated 

how a defendant's age is to affect his sentence, that is by adding a mitigating 

factor, not analyzing existing statutory factors differently. Because defendant 

was resentenced after the amendment's effective date, it was not applicable to 

him. Id. at 96-97.
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Because we are satisfied the judge's findings and balancing of the 

aggravating and mitigating factors are supported by adequate evidence in the 

record, and the sentence is neither inconsistent with sentencing provisions of 

the Code nor shocking to the judicial conscience, we affirm. See State v. 

Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); 

State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.