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State v. Towey

Decided: January 31, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALISON TOWEY, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Stein, J.

Stein

[114 NJ Page 72] In this case we must determine whether a trial court may impose the maximum parole ineligibility term permitted by the Graves Act, N.J.S.A. 2C:43-6c, in conjunction with the minimum base term within the presumptive sentencing range for aggravated manslaughter, a first-degree crime. Thus, the narrow legal issue before us is whether the Graves Act, in the context of the sentencing philosophy reflected in our Code of Criminal Justice, contemplates any limitations on a sentencing court's exercise of discretion in setting the length of a mandatory parole ineligibility term. On a broader scale, we also address the essential factors that bear on the length of any period of

parole ineligibility imposed by a sentencing court for Graves Act or non-Graves Act offenses.

This defendant pleaded guilty to the first-degree crime of aggravated manslaughter and was sentenced to a custodial term of ten years, the minimum term in the presumptive sentencing range for first-degree crimes. N.J.S.A. 2C:43-6a(1). The court then imposed the maximum parole ineligibility period allowable under the Graves Act, one-half of the custodial term, or five years. The Appellate Division heard the appeal on its sentencing calendar, R. 2:9-11, and affirmed defendant's sentence. We conclude that on this record the Graves Act sentence has not satisfactorily been reconciled with the sentence imposed for aggravated manslaughter. Accordingly, we reverse and remand for resentencing.

I.

Defendant's testimony at the plea hearing and the information contained in the pre-sentence report fully support the following account of the material facts. Defendant shot and killed her husband, William Towey, at approximately 11:30 p.m. on October 10, 1985. Earlier that day, defendant had visited a friend, Susan Petrucci, with whom she drank approximately two quarts of a combination of Sambucca and Vodka. She also ingested methamphetamines between the hours of 5:00 and 10:00 p.m.

Mrs. Towey had arranged to spend time that evening with Robert Morella, a friend of her husband, with whom she was engaged in an extramarital relationship. Morella proceeded on foot to the Towey residence from his place of employment. Defendant was not at home when he arrived. He waited on the front porch until she returned at about 11:00 p.m. According to Morella, defendant was "rowdy" and upset.

The two entered the house and commenced a conversation regarding a man identified only as "Henry." Defendant complained to Morella that "Henry" and Morella's wife would cause

her to go to jail. (The record does not disclose the reason for defendant's apprehension about imprisonment.) Defendant then left the room and returned with a revolver. Defendant held the weapon while she spoke with Morella, and at one point fired a shot into the living room floor. She later left the house with the gun, fired three more shots, and then returned to the house and reloaded the gun.

At approximately 11:20 p.m., defendant called Mrs. Morella to complain about "Henry." Morella stated that after the telephone call defendant told him that she was going to shoot his wife. Defendant subsequently retracted that threat.

Defendant then called Susan Petrucci, to ask if she could take her gun to Ms. Petrucci's house. At approximately 11:30 p.m., defendant telephoned her husband at work to advise him that she was going to remove the gun, and some marijuana and hashish, from their home. Defendant's husband immediately left work. When he arrived home an argument ensued, since decedent did not want his wife to leave the house with a gun while she was in an intoxicated state. During the argument defendant and her husband moved about the living room and kitchen. At one point, while defendant was backing into the kitchen and her husband stood several feet away, she fired a shot. Decedent fell to the floor. Morella called the police while defendant attempted to administer first aid. At defendant's request, Morella took the gun, the holster, and the ammunition for the gun outside the house and threw them in the direction of a lagoon near the Towey residence.

Two days later defendant attempted suicide at the home of a friend by slashing her neck with a razor blade. Defendant was hospitalized for one day at the Southern Ocean County Hospital. She then was transferred to the Institute of Pennsylvania Hospital for psychiatric treatment.

A criminal complaint for murder was filed against defendant approximately two weeks after her admission to the Institute. At the bail hearing, defense counsel explained defendant's

psychiatric condition, and requested that she be allowed to remain at the Institute as a condition of bail. Defendant remained at the Institute until August 18, 1986, the day before she entered a guilty plea in this case.

The trial court accepted Towey's plea to aggravated manslaughter, a Graves Act offense because of defendant's use of a firearm. N.J.S.A. 2C:43-6c. As part of the plea bargain, the prosecutor agreed to make no sentencing recommendation to the court, and to allow defendant to seek credit for time served at the Institute, specifically reserving the right to oppose that application.

At the sentencing hearing, Harry Zall, M.D., a board-certified psychiatrist employed as a clinical instructor of psychiatry at the University of Pennsylvania Medical School, testified that he treated defendant at the Institute, that she required intensive psychiatric therapy, and that she had responded well to treatment thus far. Thomas Sexton, a certified addiction counselor at the Institute, gave similar testimony.

The trial court, after reviewing the psychiatric testimony, the aggravating and mitigating factors, and acknowledging the receipt of letters from both the victim's and defendant's families, imposed sentence with these comments:

THE COURT: Now, I think your counsel has told you that for this particular crime, the law provides a maximum of 20 years in a custodial situation, subject, of course, to whatever may be appropriate for parole. And that, as a Graves Act offense, the Court if it gave you 20 years, could give you ten years ...


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