On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Ashbey and Skillman. The opinion of the court was delivered by Brody, J.A.D.
[233 NJSuper Page 369] Defendant was indicted for the purposeful or knowing murder of his 18-year-old girlfriend with whom he had been living.
He beat the woman to death. The jury found him guilty of second-degree passion/provocation manslaughter. N.J.S.A. 2C:11-4b(2). The judge imposed the most severe sentence available for the crime: a 10-year prison term, 5 years to be served before parole eligibility. The sole issue on appeal is whether the trial judge complied with statutory guidelines when he imposed the sentence. We transferred the appeal to our regular calendar from the Excessive Sentence Oral Argument Program in order to have the benefit of the parties' briefs in considering the special problems raised respecting the application of the guidelines to a sentence for passion/provocation manslaughter.
The judge found four aggravating factors: that the crime was "serious," that defendant and others must be deterred from committing such a crime, that defendant committed the crime "in a cruel and vicious manner" and that the victim was physically unable to offer effective resistance when defendant struck the fatal blows. The judge found as the sole mitigating factor defendant's previous crime-free record.*fn1
Plaintiff argues that the judge should not have considered any of the four aggravating factors because the first is not an aggravating factor and the others are inapplicable when sentencing for passion/provocation manslaughter because they assume that the crime was a rational act whereas by definition the crime is not. The State concedes in its brief that the judge erred in considering the "seriousness" of the offense as an aggravating factor because the Legislature has already gauged the seriousness of passion/provocation manslaughter by making it a second-degree crime. See State v. Gardner, 113 N.J. 510, 518-519 (1989).
Before discussing whether the judge could properly consider the other aggravating factors, we need to review the evidence
on which the conviction rests. Defendant awoke in his apartment early one morning to find that the victim had not come home that night. He testified that he thereupon dressed and left the building "to get some air." While in front of the building he heard the victim's voice coming from the hallway of a neighboring building. When he entered that building to investigate, he saw the victim standing in the hallway in the close embrace of a man who was kissing and fondling her. The man fled and defendant began to inflict a beating from which the victim died two days later.
The beating lasted for a half hour. After beating her in the hallway, defendant shoved her out of the building onto the street where he continued to beat her. Passersby told defendant to stop, but as two eye-witnesses testified, he told them to mind their own business because "this is my bitch." Defendant then dragged the victim inside the hallway of the building where they lived. At trial a neighbor described her observations of the moment the victim appeared to lose consciousness after defendant had dragged her back into their building:
Yes, when he dragged her in the hallway he left her feet out. He didn't put her all the way in, so he went in the hallway. I couldn't see him hitting her or anything but I could, you know, hear the punches, so when he knocked her out, her feet stopped and I told my niece she might be dead, so he came outside and put his feet on a stump and pulled up his sock and went back in the hallway and punched her and said, "Wake up, bitch, you ain't dead."
Defendant then carried the unconscious victim into their apartment where, over two hours later, he finally called for an ambulance. When the judge asked defendant at the sentencing hearing why he waited ...