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State v. Kelly

Decided: July 29, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRETT KELLY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Morris County.

Brody and Dreier. The opinion of the court was delivered by Brody, J.A.D.

Brody

[266 NJSuper Page 393] Pursuant to a plea agreement, the Judge imposed a ten-year prison term for first-degree armed robbery, a violation of N.J.S.A.

2C:15-1. The agreement required the Judge to impose a prison term appropriate to a second-degree crime. The main issue is whether the sentence may stand in view of the Judge's inconsistent findings after weighing the aggravating and mitigating sentencing factors. The Judge implicitly found that he was clearly convinced that the mitigating factors substantially outweighed the aggravating factors to justify imposing a sentence appropriate to a seconddegree crime, N.J.S.A. 2C:44-1f(2), and at the same time found that the aggravating factors outweighed the mitigating factors to justify imposing a sentence at the top of the second-degree crime sentencing range, N.J.S.A. 2C:44-1f(1)(b).

Evidence of the crime and of defendant's background are found in the factual statement he gave at the retraxit hearing and in the Adult Presentence Report (PSR). On a cold winter night, at about 10:30 p.m., defendant and co-defendant Roberto Rodriguez approached the home of Vincent and Virginia Barila intent on stealing cash that the Barilas had recently won at an Atlantic City casino. The men had been tipped off about the money by other co-defendants. However, defendant made his own preparations for committing the crime. He and Rodriguez were wearing ski masks so as not to be identified, and each was armed with a metal baseball bat that defendant had gotten from his home. The plan was that Rodriguez would ring the front door bell and hold the occupants' attention while defendant entered the home from the rear.

Rodriguez rang the front door bell, awakening the Barilas. Vincent came to the door. While Rodriguez, pretending to be lost, asked for street directions, defendant severed the Barilas' outside telephone line and entered their home through a glass sliding door at the rear. He gained entry by shattering the door with his bat thereby terrorizing the Barilas. Rodriguez then left. While holding her 14-month old child in her arms, Virginia exchanged glances with defendant before she ran to a bedroom. After entering the home, defendant ordered Vincent to lie on the floor and threatened to beat him with the bat if he did not surrender

the money. Vincent gave up the money, $20,000. Defendant took the cash and left after he threatened to kill Vincent if he reported the crime to the police. Defendant's girlfriend gave the police a statement in which she claimed that defendant and Rodriguez each kept $9,500 of the loot, giving the remaining $1,000 to their friends who had fingered the job.

The robbery severely traumatized Virginia, requiring her to seek psychiatric help. Her fears forced the Barilas to sell their home.

At the time of the crime defendant was 22 years old. He had a minor juvenile record, but no criminal record. However, for years he had problems with alcohol. He claims to have been under the influence of alcohol when he committed the robbery. He has had two convictions of driving while intoxicated. Defendant is a high school graduate. He has worked intermittently as a construction laborer. He claimed, at the time the PSR was prepared, that he was self-employed in that trade.

In finding that the aggravating sentencing factors preponderated, the Judge emphasized the gravity and seriousness of the harm inflicted on the Barilas. N.J.S.A. 2C:44-1a(2). He noted that defendant was prepared to and did encounter the Barilas in their home at night with a baseball bat, adding a degree of terror and violation that exceeds the harm ordinarily associated with a robbery. He also relied on the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(9). The Judge gave less weight to the two mitigating factors that he identified: that defendant will compensate the victim (an unlikely prospect because defendant claims that his girlfriend ran away with his share of the loot), N.J.S.A. 2C:44-1b(6), and that although he has a juvenile record he has no criminal record, see N.J.S.A. 2C:44-1b(7).

Defendant argues that the Judge erroneously took into account the fact that he was armed with a bat despite the plea agreement that required the ...


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