STATE OF NEW JERSEY v. DAVID M. RIVERA-SOLA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6447-04T46447-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID M. RIVERA-SOLA,

Defendant-Appellant.

________________________________

 

Argued April 16, 2007 - Decided

Before Judges S.L. Reisner, Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, 03-02-0273-I.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Richard E. Incremona, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Rivera-Sola was indicted on February 10, 2003, for first-degree murder in violation of N.J.S.A. 2C:11-3 in connection with the August 12, 2002, death of his mother, Awilda Rivera-Sola. The indictment also contained two counts of third-degree possession of a weapon (a golf club) in violation of N.J.S.A. 2C:39-4(d). The matter was tried to a jury and on May 20, 2004, defendant was convicted on all counts as charged. The weapons convictions were merged into the murder conviction and the judge sentenced defendant to life in prison with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). As a result, defendant will serve a total of sixty-three years, nine months, and three days, at which time defendant will be about ninety-four years old. In addition, the judge imposed a statutorily mandated five-year period of parole supervision following defendant's release from incarceration, together with fines and penalties which are not in dispute here. This appeal followed.

I.

On August 12, 2002, when Fernando Rivera-Sola, defendant's father and the husband of Awilda Rivera-Sola, returned from work to his home at 7 Colgate Avenue in Neptune after 7:30 p.m., he found no cars in the driveway, including the black Jeep Cherokee used by defendant. Defendant's father tried to open the front door, but something was obstructing the movement of the door. As he pushed it open, he found his wife lying face up at the bottom of the stairs, visibly wounded. He began mouth-to-mouth resuscitation and called 911. He was told to continue giving mouth-to-mouth resuscitation until the first-aid squad arrived.

Emergency Medical Technician George Cummings was the first to arrive. He found defendant's father at the bottom of the steps with his wife. She had a rapid, but weak, pulse. He saw a lot of blood and the mother had open facial wounds and a wound on her arm. She had a chin laceration and a lot of blood and mucus was coming out of her mouth. Cummings also observed blood smears on the wall. Paramedic Amy Werner also arrived at the scene. She saw that defendant's mother had puncture wounds in her chest, damage to her nose, and severe trauma to her face, with one side flattened. Defendant's mother was placed on a backboard; then the paramedics lost her pulse. Cummings and other paramedics attempted to save her life, but were unsuccessful.

Patrolman Jeffery Narcisco was dispatched to the scene and as he entered the home, he observed the first-aid squad working on defendant's mother. He also saw the head of a one-iron golf-club near her. He found no signs of forced entry. Other officers and detectives quickly gathered at the scene.

Roberto Rivera, defendant's brother, lived with defendant and their parents. On August 12, 2002, he contacted his mother at home at about 7:00 p.m. His mother answered and they spoke about dinner. Roberto then spoke with defendant for about two minutes, but never heard any disagreement going on between defendant and his mother. Shortly thereafter, he left work, made a quick stop and went home to find police and ambulance trucks parked out front. After police told him that his mother had died, they questioned him regarding the whereabouts of his two brothers, defendant and Carlos. After Carlos arrived home, Carlos, Roberto, Roberto's fiancée, and Fernando all went to the police station to give statements while the police processed the scene. Sergeant Robert Mangold, also at the scene, was directed to canvass local motels to see if they could find defendant's Jeep. After interviewing defendant's father and brothers, the Neptune police issued a notice to other law enforcement departments that they were looking for defendant.

While the murder investigation was in progress, Chaheda Urvi, an owner-operator of the Red Carpet Inn in Absecon, was in her motel when defendant came into the lobby and asked for a pair of scissors, which she gave to him. She observed defendant leave, head toward the back of the parking lot, then turn around, walk toward the main road, and run into oncoming traffic in front of her motel. He was hit by a passing vehicle. She promptly called 911, later spoke with the police about the accident, and pointed out defendant's Jeep to the police.

Lieutenant John Bieniakowski, from the Galloway Township Police Department, responded to this motor vehicle collision. He noted that defendant appeared to be severely injured. Patrolman Joseph J. Picardi, also from Galloway, responded to defendant's accident. Learning that the Jeep belonged to the person involved in the accident, he looked inside the Jeep to ascertain the identity of the person in the accident. When the scene of the accident was cleared, the Jeep was towed to an impound yard and then to the Galloway Police Department yard.

Shortly after Mangold left defendant's home to search for defendant's car, he and Detective Brian Veprek, from the Monmouth County Prosecutor's Office, were redirected to Galloway Township to investigate the auto accident because the police in Galloway reported to the Neptune police that defendant had been involved in an accident. When they learned that defendant was at the Atlantic City Medical Center, Mangold and Veprek went to speak with defendant at about 1:00 a.m. on August 13, 2002. Defendant was at the hospital for surgery on a fractured right hand. Defendant also had various blunt-force chest injuries and facial lacerations. The Neptune police secured an arrest warrant and defendant was placed under arrest on August 13 for the murder of his mother. The officers waited for defendant's surgery to be completed, and after defendant was admitted to recovery and then a private room, Mangold and Veprek took shifts watching defendant sleep until morning.

In the morning, Mangold and Veprek identified themselves and read defendant his Miranda rights. Mangold observed that defendant "appeared to fully understand what was going on" and was very cooperative. After defendant waived his rights and agreed to talk, the officers explained that they were interviewing defendant regarding injuries sustained by his mother the night before. They told defendant that his mother was the victim of an assault.

Defendant told the officers that he had been golfing the day before, had not been home for two days, and denied attempting suicide the previous day. He could not remember the names of the golf courses and claimed that he was hit by a car while retrieving some papers. He then told the officers that his mother was driving him crazy and he couldn't take it anymore. After further questioning, he changed his story to admit that he was home and "tapped" his mother with the grip end of an iron golf club twice because she was annoying him about getting a job when he was on the phone.

After arranging for the necessary equipment, a videotaped statement was taken and defendant revealed that he also hit his mother with the phone. He said his mother scratched him after being hit with the phone. He said this all occurred "downstairs in the den/bedroom." He denied hitting her with anything else or screaming at his mother. He then stated that he took his golf clubs, went to his car, and left the house, but couldn't remember the exact time. He drove to Atlantic City to do some paperwork because "it's peaceful." He then confessed to being upset and attempting suicide by "[r]unning on to the road and hoping that a car would run me over." He believed that his mother favored his brother over him. He claimed to have used marijuana the night of the incident.

After defendant told the officers in the videotaped statement that he was not home on the night of the incident, the officers informed defendant that they had previously spoken to his brother, who told the officers that he had a conversation with defendant on the home phone at about 7:00 p.m. and that his mother was home at the time.

After the videotaped interview, the prosecutor and the police continued to question defendant, and again read his Miranda rights to him. Defendant confessed to tapping his mother on the elbow and asked if she sprained her elbow. After defendant told the officers that his mother was okay when he last saw her, the officers told defendant that his mother was murdered, was stabbed several times, and received trauma to her face resulting in her death. Defendant denied doing it. Defendant never showed any emotion when the police described "the hideous scene" they saw.

On August 14 Detective Sergeant Michael Emmons was involved in another interview of defendant and observed that defendant appeared "more concerned that he had gotten hit by a truck than the fact that his mother had been murdered." Emmons also saw "crescent-shape cuts on his fingers in the web area . . . between his fingers on his hands" that were inconsistent with injuries from being hit by a car, but were consistent with defensive injuries.

Kevin Queen, a "prison snitch," who was defendant's cellmate while in Monmouth County Correctional Institution, testified at trial. He testified to a conversation he had with defendant. Defendant told Queen that one day he just snapped at his mother who was driving him crazy. He grabbed a golf club and swung it at his mother then stabbed her with it. Defendant also admitted to Queen to attempting suicide. They had this conversation every day for about three to four days.

Dr. Jay Peacock, the Monmouth County Chief Medical Examiner and forensic pathologist, testified about the autopsy he conducted of defendant's mother on August 13, 2002, at about 10:45 a.m. He observed the following significant injuries: three perforations through the cup of the bra, which corresponded to perforations in the blouse; a laceration with a diameter of six inches that extended to the skull, which was branching without any skull palpable fractures; a fifteen- centimeter hemorrhage on the outer surface of the brain; facial injuries consisting of fractures of the right and left zygomatic bones; a one-inch contusion above the right eyebrow; bruised aspects of the eyelids; fractures of the nasal bones; a contusion on the base of the nose; superficial lacerations of the nose; and a three-eighths-inch perforation through the lip, which dislodged two teeth from the gums. The facial injuries were consistent with someone wearing eyeglasses, such as those found at the scene.

The medical examiner also found about five ounces of bloody material in the stomach; fractures of both sides of the thyroid cartilage; hemorrhaging on the mucosal surfaces of the trachea, larynx and bronchi; six stab wounds and eight sets of abrasions and contusions involving the front of the chest, including three stab wounds involving the middle and lower portions of the right breast; and various lacerations and abrasions to the right arm consistent with the victim's stab wounds. The medical examiner also observed blood stains on the surface of the broken golf shaft and material at the end of the shaft consistent with tissue. The injuries to both hands and the right arm were consistent with defensive wounds. All of the penetrating injuries were consistent with the shaft being used as a stabbing instrument. The medical examiner determined that the cause of death was "the combined effects of multiple stab wounds involving mainly the chest and blunt-force head injuries." Nothing about the victim's heart led to her demise.

Karen Menser, a forensic scientist, examined many items recovered for blood. She found that the following tested positive for blood: a red and gray umbrella; the golf club shaft; a number of different swabs; a black umbrella; a wind-breaker; a cordless phone; a blue sock; the victim's right and left sandals, pants, shirt, bra, fingernails, and oral swabs; and defendant's sweatpants, shirt, underwear, and golf shoes. She sent various pieces of evidence for DNA testing.

Lynne McBride, an employee of the Forensic Science DNA Laboratory, conducted DNA analyses from samples provided to her from the crime scene. She found that the DNA from the golf-club shaft matched the DNA from defendant's mother. The DNA from defendant's right golf shoe also matched the mother's, as did the DNA from defendant's shirt and sweatpants.

II.

Defendant raises the following issues on appeal:

POINT I - THE SEQUENTIAL "ACQUIT FIRST" JURY INSTRUCTION AND VERDICT SHEET TOLD THE JURY, IN DIRECT VIOLATION OF STATE V. COYLE, 119 N.J. 194 (1990), TO DELIBERATE ON PASSION/ PROVOCATION MANSLAUGHTER ONLY AFTER FINDING DEFENDANT NOT GUILTY OF MURDER. (Not Raised Below)

POINT II - THE JUDGE INAPPROPRIATELY FOUND THE DEATH OF THE VICTIM TO BE AN AGGRAVATING FACTOR; MOREOVER, A FAR GREATER JUSTIFICA-TION FOR A PARTICULAR MURDER SENTENCE MUST BE GIVEN THAN WAS GIVEN HERE, WHEN THAT SENTENCE, UNDER THE NO EARLY RELEASE ACT (NERA), COULD POSSIBLY INVOLVE SUCH WIDELY VARYING AMOUNTS OF PAROLE INELIGIBILITY; TO REQUIRE LESS THWARTS THE GOALS OF THE CRIMINAL CODE WITH REGARD TO SENTENCING.

Our review of these issues is limited. Because defendant did not object to the jury charge or the verdict sheet, defendant must demonstrate that the charge and verdict sheet were plainly erroneous. R. 1:7-2; 2:10-2; State v. Chapland, 187 N.J. 275, 289 (2006). That is, defendant must demonstrate "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). We review the entire charge in deciding a claim of harmful error as well as the context of the error. State v. Nelson, 173 N.J. 417, 447 (2002); State v. Gartland, 149 N.J. 456, 473 (1997).

Our review of the sentence imposed is also limited. Because a judge has discretionary power to sentence a defendant to life imprisonment for murder, State v. Abdullah, 184 N.J. 497, 499 (2005), we must affirm a sentence so long as (1) the sentencing guidelines were followed, (2) the aggravating and mitigating factors considered were supported by credible evidence, and (3) the sentence is not "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984).

III.

Defendant contends that the charge on murder and its lesser-included offenses violated the holding of State v. Coyle, 119 N.J. 194, 223-24 (1990), by precluding or inhibiting proper consideration of passion/provocation manslaughter as a lesser-included offense, thereby violating defendant's Fourteenth Amendment rights to due process and a fair trial. He argues that his murder conviction must, therefore, be reversed and the murder count remanded for retrial.

A purposeful killing in New Jersey can be either murder or passion-provocation manslaughter. State v. Grunow, 102 N.J. 133, 138-40 (1986). A homicide, here matricide, is murder when an actor purposely or knowingly causes serious bodily injury resulting in death. N.J.S.A. 2C:11-3(a)(1), (2). On the other hand, a homicide constitutes manslaughter when it "is committed in the heat of passion resulting from a reasonable provocation" absent which it would otherwise be murder. N.J.S.A. 2C:11-4(b)(2). "Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990).

The first two elements, adequate provocation and insufficient time to cool off, are determined by an objective standard. In order for provocation to be adequate, the provocation must be sufficient enough "'to arouse the passions of an ordinary [person] beyond the power of his . . . control.'" Id. at 412 (quoting State v. King, 37 N.J. 285, 301-02 (1962)). Generally, words alone are inadequate to constitute sufficient provocation, "no matter how offensive or insulting" they may be. State v. Crisantos, 102 N.J. 265, 274 (1986).

Similarly, the second element is an objective determination as to whether a sufficient cooling-off period had transpired between the provocation and the murderous act. Mauricio, supra, 117 N.J. at 412-413. Trial courts may withhold passion/ provocation murder instructions if there is clearly a reasonable cooling-off period and are left to define reasonable on a situational basis. Id. at 413.

When the record contains evidence of provocation and passion, the State must prove beyond a reasonable doubt that the killing was not the product of passion/provocation. State v. Feaster, 156 N.J. 1, 37 (1998); State v. Powell, 84 N.J. 305, 314 (1980). If the evidence of passion and provocation is sufficient, the jury must be instructed that "to find [murder] it must be convinced beyond a reasonable doubt that the accused did not kill . . . in the heat of passion . . . ." Grunow, supra, 102 N.J. at 145 (quotations omitted).

In Coyle the trial judge did not instruct the jury in connection with the murder charge that the State was required to disprove passion/provocation beyond a reasonable doubt. Coyle, supra, 119 N.J. at 222. That instruction was given only in the context of the manslaughter charge where the judge told the jury that, if it found that the State had proven beyond a reasonable doubt that the killing was not a result of passion/provocation, the jury should return a verdict of murder. Ibid. However, before this latter charge was given, the judge had instructed the jury that it should only consider the lesser-included offense of manslaughter if it determined that the State had not proven murder beyond a reasonable doubt. Ibid. The Court determined that this latter charge had the potential of foreclosing consideration of passion/provocation in the context of the murder charge. Ibid.

Although the Court expressed no disagreement with sequential charges, it held:

In murder cases in which there is evidence of passion/provocation, . . . a court must take additional care in issuing clear instructions. In those cases a se-quential charge coupled with an instruction that inadequately defines the elements of the greater offense, namely, murder, can mislead the jury. Such a charge is inade-quate. In this case the failure to heed defendant's objection to the charge and to reinstruct the jury so greatly risked confusion as to amount to error. To avoid repetition of that error, we suggest that trial courts instruct jurors in the initial charge on murder about the effect of passion/provocation on an otherwise-intentional killing.

[Coyle, supra, 119 N.J. at 223-24.]

The State in Coyle argued for the first time on appeal that the deficiency in the charge was harmless, but the Court rejected this argument. Id. at 224. The Court found that the evidence before it was sufficient to support the lesser-included offense because a jury could conclude that

defendant and [the victim] had engaged in a heated confrontation, which led to the firing of a warning shot; that [the victim] had obstructed the [defendant's and his wife's] escape and had chased [defendant's] wife down the street; and that in an effort to protect [his wife] defendant had pursued [the victim] and had fired randomly at him.

[Ibid.]

The Court found that this evidence left room for dispute as to the existence of passion/provocation and reversed the conviction. Ibid.

Even if an erroneous "acquit first" charge is given, a subsequent instruction may cure the error when the charge is considered as a whole. In State v. Heslop, 135 N.J. 318, 323-24 (1994), the trial court erroneously instructed the jury to sequentially consider purposeful/knowing murder before passion/ provocation murder. However, our Supreme Court determined that a curative instruction subsequently given to "consider the heat of passion upon reasonable provocation in connection with the purposeful or knowing murder count[,] . . . sufficiently inform[ed] the jury that it must find defendant guilty of nothing greater than manslaughter if it had a reasonable doubt concerning whether defendant had acted in the heat of passion[.]" Ibid. (emphasis omitted); State v. Johnson, 257 N.J. Super. 178, 201 (App. Div.), certif. denied, 130 N.J. 596 (1992).

In addition, erroneous verdict sheets may be cured with appropriate jury instructions. In State v. Vasquez, 265 N.J. Super. 528, 546-47 (App. Div.), certif. denied, 134 N.J. 480 (1993), the trial judge did not explain how the jury should consider passion/provocation manslaughter simultaneously with murder when reviewing the verdict form. However, we noted that the trial judge

had instructed the jury three times on the need to consider whether the State had satisfied its burden of disproving beyond a reasonable doubt the presence of passion/ provocation manslaughter. Significantly, not only was the jury advised twice before being given the verdict form, but also thereafter during deliberations when it requested a redefinition of murder and aggravated manslaughter.

[Id. at 546.]

Therefore, we found no reversible error because the trial judge properly explained the elements of murder and the State's burden of disproving the presence of passion/provocation. Id. at 547. See also State v. Reese, 267 N.J. Super. 278, 288-89 (App. Div.), certif. denied, 134 N.J. 563 (1993) (no plain error existed where the verdict sheet sequentially listed murder and passion/provocation manslaughter because trial judge properly instructed the jury on the State's burden of proof).

Here, defendant alleges that the trial judge violated the "acquit first" rule when he was reviewing the verdict sheet with the jury. The judge discussed the first question on the verdict sheet as follows:

The first question that you're going to consider is how do you find the defendant . . . on the charge that on the 12th day of August, 2002, he did commit the crime of murder, in that he purposely or knowingly caused the death of Awilda Rivera-Sola or purposely or knowingly caused serious bodily injury to Awilda Rivera-Sola resulting in her death?

You'll answer that either guilty or not guilty. And all 12 of you have to agree as to that verdict.

If you find the defendant . . . is guilty, then you're going to go to question number two that deals with one of the possessions of a weapon for an unlawful purpose.

If you find the defendant is not guilty, you will consider passion provocation manslaughter.

However, as the State points out, defendant ignores the initial charge on passion/provocation manslaughter and murder. The jury charge was:

A person is guilty of murder if he, one, causes the victim's death or serious bodily injury that then results in death; and two, that the defendant did so purposely or knowingly; and three, that he did not act in the heat of passion resulting from a reasonable provocation.

If you find beyond a reasonable doubt that defendant purposely or knowingly caused Awilda Rivera-Sola's death or serious bodily injury that then resulted in death, and that he did not act in the heat of passion, resulting from a reasonable provocation, defendant would be guilty of murder.

If, however, you find that defendant purposely or knowingly caused death or serious bodily injury that then resulted in death, and that he did act in the heat of passion resulting from a reasonable provocation, defendant would be guilty of passion provocation manslaughter.

So those are the two matters that you will consider. You will consider whether he is guilty of murder; and if he is found not guilty of murder, then you consider the passion provocation manslaughter.

But you must consider those three elements and I'm going to now discuss those three elements of murder with you.

In order for you to find defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt. Again, one, that defendant caused Awilda Rivera Sola's death or serious bodily injury that then resulted in her death[;] and two[, t]hat defendant did so purposely or knowingly[;] and three, that defendant did not act in the heat of passion resulting from a reasonable provocation.

[(Emphasis added.)]

These instructions follow the language of each and every element of the model charge. See Model Jury Charge (Criminal), Murder, Passion/Provocation and Aggravated/Reckless Manslaughter (Mar. 22, 2004).

While the judge did instruct the jury to decide the murder question before the passion/provocation manslaughter question, when the charge is taken as a whole, just as in Heslop, the charge contained sufficient direction to consider the State's burden to disprove passion/provocation as an element of murder. In fact, the judge mentioned this burden four times in charging on murder. This repetition cured any violation of the rule in Coyle that may have been committed. When the charge is considered as a whole, no plain error occurred.

Defendant also contends that the "acquit first" verdict sheet violated Coyle. The two relevant questions were:

1. How do you find the defendant, David Rivera-Sola, on the charge that on or about the 12th day of August, 2002, he did commit the crime of Murder, in that he purposely or knowingly caused the death of Awilda Rivera-Sola or purposely or knowingly caused serious bodily injury to Awilda Rivera-Sola resulting in her death?

If you find the defendant, David Rivera-Sola, guilty, go to question #2. If you find the defendant, David Rivera-Sola, not guilty, go to question #1a.

1a. How do you find defendant, David Rivera-Sola, on the lesser included offense of Passion/Provocation Manslaughter?

It certainly would have been better to have each of the elements of these two crimes contained in the verdict sheet, rather than having two of the elements of murder listed and none of the elements of passion/provocation manslaughter. However, even if this was a legal impropriety, it had no prejudicial effect on the substantial rights of defendant and, thus, did not have a clear capacity to bring about an unjust result. Here, the charge was correct and was not only read to the jury but a typed copy of the instructions was given to the jury to review in the jury room during their deliberations. We trust juries to follow the instructions given by the judge. State v. Short, 131 N.J. 47, 65 (1993) (citing State v. Marshall, 123 N.J. 1, 148-50 (1991); and State v. Winter, 96 N.J. 640, 649 (1984)). Furthermore, the judge also charged the jury as follows: "So you'll have a verdict sheet and you'll go down and you'll just consider one charge and then the subsequent charges; but you can't just . . . rule without taking a look at each of the different charges." As a result, the jury was properly instructed on how to consider the homicide charges and no plain error existed.

Furthermore, any error in the charge or the verdict sheet was harmless because the passion/provocation manslaughter charge should not have been given in the first place. There is not adequate proof in the record that defendant was provoked. The only provocation supported by the evidence was that defendant's mother nagged him to get a job and be more like his brother. Words alone are generally insufficient to constitute adequate provocation, and the words spoken by the mother here, as a matter of law, did not rise to the level of adequate provocation. While defendant may have been impassioned, no reasonable person would have been provoked to take their mother's life for nagging her thirty-year-old son to go get a job. As a consequence, there was no plain error in the charge or verdict sheet.

IV.

In sentencing defendant the trial judge made the following findings with respect to aggravating and mitigating factors:

I do find, in terms of the aggravating factors, that the nature and circumstances of this offense and the role certainly count as an aggravating factor. It was heinous and cruel and violent. And the gravity and seriousness of the harm inflicted, obviously there could be no more serious harm inflicted than a violent bludgeoning stabbing murder. It certainly qualifies for the second aggravating factor.

In addition, there is the risk that you'll commit another offense. Not because of your past but because of the anger and violence that was included in this offense. There is number nine, the need for deterring others. Obviously murder is never an acceptable option. Murder of a mother is a terrible thing for . . . the whole family. And the victim was 60 years of age or older. . . . That was the last aggravating factor. Someone who, one could hope, would have lived to a nice golden age to enjoy her children and grandchildren.

I do find the only mitigating factor, the fact that you lived 30 years without being involved in any substantial criminal activity. Nonetheless, the court is clearly convinced that the aggravating factors substantially outweigh the mitigating. The family normally, in a murder case, are here asking justice for the victim. In these intra-family cases it's so hard on the family because there is no justice, because they lose one family member and then they lose another.

Nonetheless, the court finds that the manner in which this offense occurred is so heinous and so cruel that the appropriate term is a 30 year to life sentence. The court will therefore have to apply the No Early Release Act. And so the minimum would be a 63 year, nine month, three day sentence with a period of five years of parole supervision following release.

Thus, the court considered aggravating factors one, two, three, nine, and twelve, and mitigating factor seven.

Defendant contends that the judge erred in considering aggravating factor two, the harm to the victim, because the death of the victim was an element of the offense, relying on State v. Carey, 168 N.J. 413, 425 (2001), and State v. Scher, 278 N.J. Super. 249, 273-74 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). Additionally, defendant contends that the judge failed to give a sufficient statement of the reasons for choosing to impose a life sentence rather than a lesser sentence, particularly with a first offender, such as defendant.

Aggravating factor two is:

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]

[N.J.S.A. 2C:44-1(a)(2).]

We find no error in the consideration of this factor. The record establishes that defendant was over six feet tall and his mother was just over five feet in height. The mother weighed much less than defendant, making her particularly vulnerable to an attack from defendant. In addition, the harm inflicted on her went far beyond the harm resulting in death. She was bludgeoned mercilessly and left to die slowly and alone. Clearly, she was conscious during most of the attack because she swallowed a tooth defendant knocked out by hitting her face with the golf club and, after the golf club broke and defendant began to stab her in the chest with the shaft, she turned over to protect her chest as he continued to stab her in the back. Consideration of this aggravating factor was entirely appropriate. State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) (judge may consider under factor two the extent of the injuries which exceed the statutory minimum for the offense).

We are not persuaded that the trial judge was required by virtue of NERA to give an extended explanation of her reasons for imposing a life sentence. The Supreme Court has held that:

It is not necessary that every sentence be a discourse. A brief reference to the reasons for imposing the extended term, once the minimal conditions are met, a recital of the specific aggravating and mitigating factors found and their balance, and the reasoning that led to the choice of the base and parole ineligibility terms will suffice to explain the sentence.

[State v. Dunbar, 108 N.J. 80, 97 (1987).]

The judge imposed a life sentence because the crime was so heinous and cruel. Indeed, it was. No more reason need be expressed simply because NERA requires that eighty-five percent of the sentence for any first or second degree crime be served without parole. The life sentence imposed upon defendant was not so "clearly unreasonable as to shock the judicial conscience." Roth, supra, 95 N.J. at 364.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The size of the head of the golf club was consistent with these lacerations.

The lacerations were formed by a sharp point, such as that of the broken golf shaft.

(continued)

(continued)

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A-6447-04T4

May 9, 2007