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State v. Barney

October 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LESTER S. BARNEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-01-0077.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 2, 2007

Before Judges Skillman, Winkelstein and Yannotti.

Defendant was indicted for the purposeful or knowing murder of his wife, in violation of N.J.S.A. 2C:11-3a(1), (2); second-degree interference with his wife's custody of their child, in violation of N.J.S.A. 2C:13-4a(4); and contempt of a domestic violence restraining order, in violation of N.J.S.A. 2C:29-9b. The trial court severed the contempt charge before trial and amended the interference with custody charge to the third-degree offense during trial. Following a seven-day trial, a jury found defendant guilty of both purposeful or knowing murder and interference with custody.

The trial court sentenced defendant to life imprisonment, with the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,*fn1 and a consecutive four-year term for interference with custody. The court dismissed the contempt charge.

Defendant killed his wife Alla in the late afternoon of September 29, 2003, following a court appearance in which Alla obtained a final domestic violence restraining order against him. That order enjoined defendant from having any contact with Alla. In addition, it awarded temporary custody of their child, Danny, to Alla but allowed defendant parenting time.

Around 5 p.m., defendant went to visit with Danny at his daycare facility in Mount Laurel. Defendant regularly went to the daycare facility for this purpose but he would leave before Alla arrived to pick up Danny.

Defendant parked his car at the adjacent church parking lot and walked to the playground to play with Danny. After playing with Danny for about twenty minutes, defendant went inside to talk with the daycare facility's director, Virginia Eberling. Defendant told Eberling he had lost custody of Danny and then abruptly left when his cell phone rang.

At approximately 5:40 p.m., Alla arrived to pick up Danny and parked in the daycare parking lot. Upon entering the daycare center, Alla asked Eberling about a bag of Danny's clothes but Eberling did not know where the clothes were. Alla left with Danny at approximately 5:45 p.m.

Although defendant left the daycare center before Alla arrived, numerous witnesses testified that they saw defendant or his car in the area around the time Alla picked up Danny. For example, Jamie Brooks, an assistant teacher, testified that she saw defendant talking on the telephone and pacing back and forth on the sidewalk near the day care facility around the time of Alla's arrival, and Danny's teacher, Christina Vorres, testified that she observed defendant in his car driving back to the daycare center while Alla was there.

Eberling testified that she left the daycare center around 6:05 p.m. As she was leaving the parking lot, she noticed that Alla's car was still there. This made Eberling "uneasy," so she stopped her car, got out and walked over to Alla's car. She peeked in the window and saw Alla lying inside the car with a long red hole in her neck and a slice across her throat. Eberling screamed, ran back to her car and drove to the police station where she reported Alla's apparent death. The police responded to the scene and found Alla's dead body in the car.

Around 7 p.m., defendant called Judith Hanney and told her he wanted to come to her home and "talk to [her] about something." Judith and her husband Tom had met defendant at their church and, at the request of their priest, Father Bohush, had invited defendant and Danny to their home several times. Judith told defendant that she had to take her daughter to band practice, so it would be inconvenient for him to come to her home at that time. When defendant insisted on seeing her, she told him to come later.

Defendant arrived at the Hanney home with Danny around 8 p.m. Shortly thereafter, defendant told Judith that "he did a dumb thing today." When Judith asked what he meant, defendant said that he went to the daycare center to talk to Alla, that they got into an argument, and that "there was a knife." Defendant also said that he "grabbed [Alla] by the wrists and [he] cut her[.]" Judith then asked defendant where Alla was, and defendant responded that she was in the hospital. Judith persuaded defendant to speak with Father Bohush. She reached the priest by telephone and gave defendant the telephone. At this point, Judith's husband Tom came home, and she told him what defendant had said about inflicting a knife wound upon his wife.

Tom then spoke to defendant while Judith sat with Danny. According to Tom, defendant gave him the following account of the murder:

Q: Did he say what happened when he went to the daycare center?

A: He said that he waited for Alla outside and when she came out he and she sat in her car, I believe it was, and that he was trying to talk to her and then kind of in a rush he said there was, you know, an argument and a struggle and there was a knife and they struggled with the knife and basically he said ["]I cut her["] and he made this motion.

THE COURT: Motion that the witness just made is a motion moving from left to right with his right hand, the witness's right hand across the neck area, is that an accurate description --

THE WITNESS: That is correct.

THE COURT: -- of what you just ...


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