A 30-year-to-life sentence imposed on a 16-year-old boy for murder and related crimes neither violates the Eighth Amendment right against cruel or unusual punishment nor offends “contemporary standards of decency,” a Bronx judge has held.

Supreme Court Justice Fernando Tapia (See Profile) noted that the punishment inflicted on Phillip Nieves was discretionary, meaning the trial judge had options, and also that the defendant will eventually become eligible for parole. With those critical elements, Tapia said, the sentence satisfies concerns raised by the U.S. Supreme Court.

In People v. Nieves, 765/82, Tapia traced the evolving jurisprudence on what has emerged as troublesome legal issue: At what point does an adult sentence imposed on a young criminal offend the state or federal Constitution?

Nieves was 16 in 1982 when he took part in a liquor store robbery in which he shot one victim in the hand and his co-defendant killed another victim. He was convicted after trial of murder, assault, robbery and weapons charges and sentenced to a term of 30-years-to-life.

Appearing pro se and citing a recent line of Supreme Court precedents, Nieves sought resentencing under guidelines applicable to juveniles. He cited: Roper v. Simmons, 543 U.S. 551 (2005), which outlawed death sentences on offenders under the age of 18; Graham v. Florida, 560 U.S. 48 (2010), which said juveniles cannot be sentenced to life-without-parole terms for non-homicide crimes; and Miller v. Alabama, 132 S.Ct. 2455 (2012), where the court extended its holding in Graham and held that a life-without-parole juvenile sentence for any crime violates the Eighth Amendment.

The Bronx district attorney’s office opposed the motion, arguing that the cited Supreme Court decisions are inapplicable to Nieves, and noting that the state Court of Appeals has not addressed the issue since 1994, in People v. Thompson, 83 NY2d 477.

In Thompson, the court applied a test it adopted in 1975 (see People v. Broadie, 37 NY2d 100) on assessing sentencing proportionality and concluded that a 15-year-to-life sentence imposed on a 17-year-old drug dealer did not violate the ban on cruel and unusual punishment.

Tapia said the Supreme Court’s holding in Miller, the most recent in a line of cases dealing with adult sentencing of juveniles, “acknowledged that juvenile offenders are still children,” but struck only those statutes requiring lifetime imprisonment without the possibility of parole because it equated such sentences with the death penalty.

“Here, although defendant, 16-years-old at the time he committed an A-1 felony under New York State Law, was sentenced as an adult to an aggregate term of 30-years-to-life imprisonment, his indeterminate sentences were discretionary and he was not denied the possibility of parole,” Tapia wrote. “Thus, under the federal standard, defendant’s sentence did not constitute cruel and unusual punishment.”

On the state claim, Tapia said Thompson controls.

“[W]here the Legislature has affirmatively denied youth status to an individual who would have otherwise been considered a youth for sentencing purposes but for the commission of certain crimes, age alone cannot establish that the sentence imposed is disproportionate to the crime committed,” Tapia wrote.

Assistant District Attorney Melanie Sarver appeared for the prosecution. There was no immediate response from the Bronx District Attorney’s office.

Although the Court of Appeals has not directly addressed in more than two decades the propriety of adult sentencing of juveniles who have committed crimes like murder, Chief Judge Jonathan Lippman (See Profile) has lobbied strenuously, albeit so far unsuccessfully, for legislation that would raise the age of criminal responsibility to 18 from 16 for non-violent crimes.