STATE OF NEW JERSEY v. DIANE M. OAKLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5518-06T45518-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIANE M. OAKLEY,

Defendant-Appellant.

_____________________________________

 

Submitted July 7, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 05-08-0120.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jerry P. Soffer,

Assistant Deputy Public Defender, of

counsel and on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Daniel I. Bornstein, Deputy

Attorney General, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant Diane M. Oakley guilty of conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, and attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, which are both crimes of the first degree, N.J.S.A. 2C:5-4a. After merging the conspiracy conviction with the conviction for attempted murder, the judge sentenced defendant to a term of imprisonment for ten years subject to terms of parole ineligibility and parole supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and imposed the appropriate fines, penalties and assessments. Defendant appeals and we affirm.

The evidence presented at trial was sufficient to permit the jury to find that defendant gave "Juan," a man to whom she was introduced by a friend, $1000 and photographs of her husband in return for Juan's promise to kill her husband if she agreed to pay an additional $25,000 after the deed was done. The jury could also have found that defendant showed Juan a copy of the policy of insurance on her husband's life that would cover the amount due Juan on their contract and leave her with a profit.

Unknown to defendant, Juan was a detective employed by the New Jersey Division of State Police who was working undercover. Defendant's friend had contacted the FBI after she told him she wanted to hire someone to kill her husband, but the FBI referred defendant's friend to the State Police. Defendant's friend agreed to cooperate with the State Police, and subsequent conversations between defendant and her friend, and defendant and Juan were recorded. The jurors heard the recordings of those conversations and were given transcripts with an instruction that the evidence was what they heard on the recording not what they read in the transcript, which were provided only as a guide for their use in listening to the recordings.

On appeal defendant raises objections to the jury instructions that were not raised below. Specifically, she contends:

I. THE JUDGE'S INSTRUCTIONS TO THE JURY

ON ATTEMPTED MURDER, THE RECORDED CONVERSATIONS, AND THE PROPER USE OF TRANSCRIPTS, WERE LEGALLY INADEQUATE, AND DENIED MS. OAKLEY DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI XIV; N.J. CONST. ART. 1, PARS. 1, 9, 10. (Not Raised Below).

A. The Instructions On Attempted

Murder.

B. The Instructions Concerning The

Recordings.

C. Instructions Concerning The Proper

Use of Transcripts.

D. Conclusion.

In a supplemental brief filed by defendant on her own behalf, she raises an additional issue:

I. THE FAILURE OF THE TRIAL COURT TO SUA

SPONTE CHARGE FOURTH DEGREE CONSPIRACY TO COMMIT ASSAULT AND FOURTH DEGREE ATTEMPTED ASSAULT, WHICH WERE CLEARLY INDICATED BY THE EVIDENCE, DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 10. (Not Raised Below).

We must review these objections to the jury charge, raised for the first time on appeal, for plain error.

"Plain error in the context of a jury charge is '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Torres, 183 N.J. 554, 564 (2005) (citation omitted). We must read the charge "as a whole in determining whether there was" plain error. Ibid.

[State v. Brown, 190 N.J. 144, 160 (2007).]

Read as a whole, the judge's instructions provide an adequate and accurate description of the elements of the crimes, the significance of the audio recordings and the evidential irrelevance of the transcripts. Defendant's arguments to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Moreover, because the record is devoid of evidence clearly indicating any ground upon which the jurors could acquit defendant of conspiracy or attempt to commit murder and convict defendant of conspiracy or attempt to commit aggravated assault, we reject defendant's claim that the judge erred in declining to charge the jury on those lesser-included offenses. State v. Jenkins, 178 N.J. 347, 361 (2004). The evidence in this case supported one of two conclusions: the State either proved or failed to prove that defendant conspired or attempted to have her husband killed. There was no evidence suggesting a plan to have Juan inflict a less serious injury.

Affirmed.

(continued)

(continued)

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A-5518-06T4

September 30, 2009