On appeal from Superior Court, Law Division, Camden County.
Michels, Pressler and Bilder.
This is an appeal from sentences for sex offenses and for murder imposed after a plea of guilty pursuant to agreement. Defendant contends one plea was unsupported by the facts, others merged and the life sentence imposed for murder was manifestly excessive.
Defendant's pleas relate to two separate incidents involving an assault on a 14-year-old girl and the murder of a 9-year-old.
With respect to the incident regarding the 14-year-old, defendant pleaded and was sentenced pursuant to agreement as an habitual sex offender to an indeterminate term not to exceed 12 years for assault with intent to rape (N.J.S.A. 2A:90-2) and a consecutive indeterminate term not to exceed 3 years for impairing the morals of a child (N.J.S.A. 2A:96-3).
With respect to the incident regarding the 9-year-old, defendant pleaded and was sentenced pursuant to agreement as an habitual sex offender to a consecutive indeterminate term not to exceed 30 years for carnal abuse (N.J.S.A. 2A:138-1) and a consecutive indeterminate term not to exceed 12 years for assault with intent to rape (N.J.S.A.
2A:90-2). Defendant also pleaded and was sentenced pursuant to agreement to a concurrent life sentence for murder and a concurrent term of 8 to 10 years for murder while armed (N.J.S.A. 2A:151-5).
The aggregate of the sentences thus imposed was an indeterminate term not to exceed 45 years for the sex offenses, with concurrent terms of life imprisonment and 8 to 10 years for armed murder.
On appeal defendant raises various issues regarding the total sentence imposed. He contends: (1) the additional sentence for being armed with a "garrote" during the commission of the murder should be vacated because it does not come within the purview of N.J.S.A. 2A:151-5; (2) the conviction for impairing the morals of a minor merges into the conviction for assault with intent to rape the 14-year-old; (3) the conviction for assault with intent to rape the 9-year-old merges into either the conviction for carnal abuse or the conviction for murder, and (5) the sentence of life imprisonment for murder is manifestly excessive.
The record reveals that defendant sexually molested the 9-year-old girl in his apartment. He then took a piece of string from a kitchen drawer, wrapped it around her neck, pulled it tight with all his might, and tied it in several knots, eventually causing her death.
N.J.S.A. 2A:151-5 provides:
Any person who commits or attempts to commit * * * murder * * * when armed with or having in his possession any firearm, whether or not capable of being discharged or dangerous instrument of any kind, usually known as a black jack, sling shot, slung shot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife or knife as defined in chapter 5 of the laws of 1952 (C. 2A:151-62), razor, stilletto, cestus, or similar band studded with metal for fitting on the knuckles, loose wool imbedded with metal filings, razor blades imbedded in wood slivers, handcuffs, iron claws, grenade, bomb or other explosive or any object or device, whether toy or imitation, having an appearance similar to or capable of being mistaken for ...