Before Judges Wallace, Jr., Cuff and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2000 - Decided March 6, 2000
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Defendant was convicted and sentenced to life imprisonment with thirty years of parole ineligibility for the murder of his girlfriend, Patricia ("Patty") Service. The crime was particularly brutal: Patty was beaten about the head, strangled, and her body immersed in scalding water. The medical examiner testified that any or all of those injuries could have caused her death.
On appeal, defendant complains of the trial court's charge respecting the lesser offense of passion/provocation manslaughter and the admission of evidence of defendant's prior assault on Patty, to show motive for the murder. Defendant also claims his sentence was excessive. We find no merit in any of the arguments, and thus, we affirm.
Defendant was thirty-five years old and married, while Patty was twenty years old and unmarried at the time of the murder on December 26, 1994. Their intimate relationship had begun in or about January 1994. They had both worked at the same place and generally saw each other at least once or twice a week, sometimes spending the night together.
On the day of the murder, defendant had arranged to meet Patty at a restaurant parking lot in Englewood where he was to give her $300 for a car payment. The two met, and defendant told Patty that, because he was busy, he could not see her during Christmas week or on New Years Eve. According to defendant, Patty then suggested they spend some time together that day at a motel where they had stayed on other occasions. Defendant agreed and the two then drove to the motel, arriving sometime in the early afternoon.
Defendant testified that they entered their room and began kissing, but Patty seemed "cold" toward him. He asked her why and she responded, "I got you back." He asked her what she meant by that, and she added, "I hope that bitch (presumably referring to defendant's wife) realized that you're having sex now because I gave you gonorrhea."
Defendant said he "didn't believe her," but he then went into the bathroom with Patty, examined his penis and, "I saw there was yellow substance coming out of it." He said that made him "very, very, very angry." When asked if he then hit Patty, he replied, "evidently I guess so." He said, "The next thing I knew is Patty was laying on the floor." *fn1
Defendant said he did not know how many times he had hit Patty. Patty was not moving, and he was unable to feel her pulse. He said he became "very afraid," that he did not "want to live anymore," but he then took a lamp cord and tied Patty's feet to her hand. He carried her to the bathroom, saying he "wanted to hug her and commit suicide." He put Patty into the tub, with running water subsequently determined to be approximately 150 degrees Fahrenheit. He stepped into the tub himself (he said with the intention of committing suicide) but got out because the water was so hot it burned through his boots.
Defendant then decided to visit and speak to a priest he knew. He drove to the priest's church in Irvington but, when he did not see the priest's car, he returned to the motel.
Defendant then called the police. Initially, he told them he had been out of the room for three or four hours and only found Patty in the tub upon his return. He persisted in that story for some time but eventually described how Patty had actually been killed. When one of the detectives asked him why he had killed Patty, defendant replied "cause the bitch gave me gonorrhea."
The Medical Examiner testified that Patty had suffered acute scalding over forty percent of her body. He said she had died from the scalding as well as from brain contusions due to blunt trauma and probably strangulation as well.
The jury found defendant guilty of knowing and intentional murder and rejected the argument that he should be found guilty only of passion/provocation manslaughter under N.J.S.A. 2C:11-4b(2). Since the prosecution had not sought the death penalty, the only question on sentencing was whether defendant should be sentenced to life imprisonment with thirty years of parole ineligibility, or to a flat term of thirty years during which he would not be eligible for parole, N.J.S.A. 2C:11-3b(1). In imposing the more severe ...