Opinion
DOCKET NO. A-1924-06T4
03-09-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL GORE, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (William A. Haumann, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
01-09-1181.
Joseph E. Krakora, Public Defender,
attorney for appellant (Marcia Blum,
Assistant Deputy Public Defender, of counsel
and on the brief).
Joseph L. Bocchini, Jr., Mercer County
Prosecutor, attorney for respondent (William
A. Haumann, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant was convicted by a jury of murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1(b); and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. Following merger of the felony murder conviction into that for murder, defendant was sentenced to life in prison subject to a thirty-year parole disqualifier on the murder conviction, to a consecutive eighteen-year prison term subject to a nine-year parole disqualifier on the robbery conviction, and to a concurrent term of five years on the weapons possession conviction. All sentences were to run consecutively to a sentence that defendant was already serving.
On appeal, we reversed defendant's conviction in an unreported opinion, State v. Gore, No. A-1924-06 (App. Div. October 26, 2009). We did not reach defendant's sentencing arguments, which were as follows:
POINT III
THE CONVICTION FOR POSSESSION OF A KNIFE FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE ROBBERY.
POINT IV
THE LIFE TERM IMPOSED ON THE MURDER, COUPLED WITH THE CONSECUTIVE TERM IMPOSED ON THE ROBBERY, CONSTITUTES AN EXCESSIVE SENTENCE.
The Supreme Court reversed our decision and remanded the matter for "consideration of defendant's remaining merger and sentencing arguments." State v. Gore, 205 N.J. 363, 384-85 (2011). In this opinion, we do so.
The facts of the matter are fully set forth in the Supreme Court's decision. Id. at 368-71. Suffice it to say here, the evidence presented at trial demonstrated that, on August 7, 2000, defendant entered the home of an eighty-five-year-old close family friend whom he regarded as a grandmother and removed some money from her unattended purse. When the victim, who was upstairs, saw what defendant was doing and threatened to call the police, he garroted her with a telephone cord, leaving her, he thought, dead. He then returned to the first floor. While there, defendant became concerned that the victim might be continuing to show some signs of life. Therefore, he went to the kitchen, obtained a knife, and slit the victim's throat.
That night and during the next morning, defendant used the victim's MAC card on three occasions to withdraw cash from ATM machines. Evidence taken from the machines' surveillance tapes led to defendant's arrest. He was subsequently interrogated and confessed to the crimes.
As stated, the matter was tried, and defendant was convicted of murder, felony murder, first-degree robbery, and third-degree possession of a weapon for an unlawful purpose. The reasons for his sentence for murder of life in prison with thirty years of parole ineligibility and his consecutive sentence for robbery of eighteen years with nine years of parole ineligibility were set forth on the judgment of conviction, dated October 3, 2005, as follows:
Defendant, age 26, was convicted by a jury of the murder of an 85-year old woman, who was a close friend of his family. She was beaten, a phone cord was wrapped around her neck, and her throat was deeply slashed. Defendant has a significant juvenile record and a prior conviction for robbery which involved the use of a BB gun. At the time this offense was committed, the defendant had left a halfway house without authorization and had not completed his sentence on the robbery.
Aggravating factors: (3) and (6). Significant risk that defendant will commit another offense, based upon the extent of his prior criminal history and the serious and violent nature of the offenses; (12) and (2) the defendant committed the offenses against a person whom he knew was 60 years or older and she was incapable of exercising normal resistance both because of her advanced age (85) and her fragile physical condition; extremely high need for deterring the defendant and others from violating the law.
Mitigating factors: None found to apply. The court is clearly convinced that the aggravating factors substantially outweigh the non-existent mitigating factors. Strong need to protect society from defendant's pattern of violent activity mandates a high sentence. Consecutive term
imposed for robbery based upon the fact that the court finds a separate course of conduct involved in the robbery and murder. The robbery was complete after defendant took property from the victim's purse, assaulted her and tied a phone cord around her neck. Thereafter, he went downstairs, heard a noise from the second floor, went to the kitchen, obtained a knife and then returned to the victim's bedroom and deeply cut her neck. The court also finds a consecutive sentence is appropriate in light of the circumstances of these crimes.
On appeal, defendant first argues that the conviction for possession of a knife for an unlawful purpose should have merged with the murder. Because that point has been conceded by the State, the matter will be remanded to the trial court for correction of defendant's judgment of conviction.
Defendant sets forth in his argument heading that his conviction for possession of a knife for an unlawful purpose should have merged with the conviction for robbery. However, in his text, he argues that the weapons offense should have merged with his murder conviction. We assume the latter to have been defendant's true contention.
Turning to his sentences for murder and robbery, defendant does not dispute the judge's selection of aggravating factors. Rather, he argues that his life sentence for murder with a thirty-year parole disqualifier was excessive, and that a sentence of thirty years to life should have been imposed. Additionally, he argues that the judge erred in imposing both the sentence for murder, as well as the eighteen-year sentence with a nine-year parole disqualifier for robbery, consecutive to the sentence that defendant was already serving. Defendant contends that all of the sentences should have been imposed concurrently.
We disagree with defendant's sentencing arguments. The imposition of a life sentence for the murder with a thirty-year parole disqualifier was in accordance with the governing statute when imposed in 2005. See N.J.S.A. 2C:11-3b(1). In the circumstances presented, we find no abuse of discretion by the trial judge in imposing such a sentence, given the nature of the crime, defendant's relationship to the victim, her age and condition, and defendant's repeated and varied attempts to secure her death. See, e.g.. State v. Glover, 230 N.J. Super. 333, 344 (App. Div. 1988) (finding imposition of such a sentence appropriate when the crime "was truly heinous and vicious"), certif. denied, 121 N.J. 621 (1990). In this case, like Glover,
the evidence supports very strongly the findings of the sentencing judge, and h[er] application of the sentencing guidelines was entirely proper. Further, the sentence does not shock the judicial conscience but rather reflects a sentence which is particularly fitting to both the crimes and the defendant. State v. Roth, 95 N.J. 334, 364-65 (1984).
[Ibid.]
Similarly, in the circumstance presented, we find nothing improper in the consecutive imposition of sentences under the guidelines established by State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In this case, the crimes committed by defendant that are the subject of this appeal are wholly separate from the criminal acts that led to defendant's prior sentence, thereby justifying the imposition of a sentence consecutive to that prior sentence. "[T]here can be no free crimes in a system for which the punishment shall fit the crime." Id. at 643.
Further, as the sentencing judge recognized in the present matter, defendant's crime of robbery was complete at the time he stole the victim's money, garroted her, and returned to the first floor believing the victim to be dead. Defendant's second murderous act thus was separate and independent of his initial crime and was properly treated as such for sentencing purposes. We have recognized that consecutive sentencing is an "appropriate means to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle." State v. Mosch, 214 N.J. Super. 457, 464 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987). Such protection was clearly warranted here.
Defendant's sentence is affirmed in part and reversed in part. The matter is remanded for correction of the judgment of conviction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION