On appeal from the Superior Court, Law Division, Monmouth County.
Matthews, Morton I. Greenberg and J. H. Coleman.
This is an appeal from a murder conviction in which defendant and her cofelon agreed to murder their mutual lover. Defendant's trial was severed from that of her cofelon. On May 10, 1979 defendant was convicted of murder of Arthur W. Ivery, conspiracy to commit murder and forgery of Ivery's signature on a credit card slip. On the same day the jury verdict was received, the judge imposed a life sentence to the Correctional Institution for Women at Clinton on the murder charge. The judge fixed May 25, 1979 as the sentencing date on the other convictions. After defendant had left the courtroom, her counsel informed the judge that defendant was already serving a sentence for parole violation. The judge immediately ordered defendant, her attorney, and the prosecutor be brought back to court. Upon the reconvening of court, defendant was advised that the court was reserving decision on whether to make the life sentence concurrent or consecutive to the sentence she was then serving. This appeal followed.
Defendant cites five errors:
I. The trial court's failure to charge the jury that the use of alcohol can operate to reduce the degree of culpability from first to second degree murder constitutes reversible error. (Not raised below.)
II. Defendant was denied her right to effective assistance of counsel.
III. The trial judge erred in instructing the jury with regard to defense of another.
IV. The court impermissibly gave defendant a consecutive sentence to her present sentence.
V. Defendant's sentence was excessive and manifestly should be reduced.
The evidence at trial revealed that on December 30, 1978 codefendant Albirtha Johnson picked up defendant at a bus station in Freehold. They drove to Johnson's home in Long Branch. Defendant and Johnson were lovers. Both Johnson and defendant also engaged in sexual relations with decedent. Johnson and decedent shared the same residence. Apparently this tempestuous arrangement often led to frequent physical fights between Ivery and the two women. Since defendant was a woman of no ordinary size -- weighing approximately 250
pounds and somewhat resembling a male, she was apparently able to overwhelm Ivery when they fought.
During the ride from Freehold to Johnson's house in Long Branch, Johnson told defendant that she wanted Ivery dead because "she didn't want him in her life any more." ...