October 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER J. O'BRIEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-06-1138.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Payne, Lyons and Waugh.
Defendant Peter J. O'Brien appeals his conviction after a trial by jury on both counts of an indictment charging him with the purposeful or knowing murder, N.J.S.A. 2C:11-3, of his mother and stepfather. We affirm defendant's convictions, but because we find error in the sentencing judge's application of N.J.S.A. 2C:44-1a(12), we vacate defendant's sentence and remand the matter for resentencing. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On the afternoon of May 7, 2004, defendant picked up his mother, Josephine O'Brien, and stepfather,*fn1 Anthony Napoleon, at Newark airport. Ms. O'Brien and Mr. Napoleon had spent the winter at their Florida residence and were returning to New Jersey for the summer. Defendant had stolen approximately $40,000 from his parents during the months they were out of state.
After picking his parents up at the airport, defendant drove them to their home in Toms River. The trip took approximately an hour, and during that time defendant and his parents engaged in normal, unremarkable conversation. Upon arriving home, defendant backed into the driveway and helped his parents bring their luggage into the house. Unbeknownst to either Ms. O'Brien or Mr. Napoleon, prior to leaving for the airport, defendant had taken a loaded Smith and Wesson .38 caliber pistol out of a filing cabinet in Mr. Napoleon's office and placed it on his bed.
After assisting his parents with their luggage, defendant went into his bedroom, retrieved the gun, as well as a blue and white, lace trimmed, Ralph Lauren pillow, and proceeded into his stepfather's office. Defendant then shot Mr. Napoleon from behind several times at close range. Ms. O'Brien was in the bathroom when she heard the shots. She said "What the hell is wrong?" She then walked out of the bathroom and defendant shot her twice at close range.
After shooting his parents, defendant put the gun and pillow into his black Lincoln Town Car. He went back into the house where he saw Mr. Napoleon on the floor with a cordless telephone in his hand. Defendant took the telephone and placed it back on the receiver. Mr. Napoleon looked at defendant and said "I love you." Defendant responded "I love you too" and then left the house. Mr. Napoleon managed to find another telephone and called 9-1-1, reported the shootings and implicated defendant as the shooter. When police arrived on the scene, Ms. O'Brien was found dead in the house and Mr. Napoleon was found alive, outside of the house, near the curb. Mr. Napoleon was taken to the hospital, where he was pronounced dead.
When defendant left the family home after taking the cordless telephone from Mr. Napoleon, he went to a local Stop n' Shop where he put the gun, pillow, and button down shirt he was wearing into a dumpster. After disposing of the evidence, defendant met friends and went to McDonald's. Defendant was at the McDonald's drive through when initially contacted on his cell phone by police.
After being contacted by police, defendant and a female friend went to the Dover Township Police Headquarters where they were met by Detective John Thievon, a forty-year veteran of the Dover Township police force. Detective Thievon escorted defendant and his friend into an interview room and proceeded to collect basic information, including name, address, and social security number from each of them. Defendant stated that his companion told him that his parents had been shot and asked Detective Thievon about their condition. The detective told him he "had no firsthand information" about defendant's parents.
Detective Thievon left when Detective Bajada of the Dover Township Police Department and Investigator Mitchell of the Ocean County Prosecutor's Office arrived to conduct a formal interview. Defendant was upset when the detective and investigator arrived at the interview room. Defendant had "[h]is hands over his face. His head was down, and he was visibly upset, sweating profusely. His knee was bouncing up and down, and he was basically waving from side to side, and was uttering 'Mom.'" Prior to beginning the interview, defendant was advised of his Miranda*fn2 rights, which he waived. After reading defendant his rights, Investigator Mitchell advised him that the police were in possession of a 9-1-1 tape on which Mr. Napoleon implicated defendant in the homicides. Defendant sat silently for approximately thirty seconds then said "I did it." He later made a full confession.
On June 29, 2004, defendant was indicted by an Ocean County Grand Jury and charged with the following offenses: murder in the first degree, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count one); murder in the first degree, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count two); possession of a firearm for an unlawful purpose, a crime in the second degree, contrary to N.J.S.A. 2C:39-4a (count three); possession of a firearm for an unlawful purpose, a crime in the second degree, contrary to N.J.S.A. 2C:39-4a (count four); unlawful possession of a weapon, a crime in the third degree, contrary to N.J.S.A. 2C:39-5b (count five); and theft by unlawful taking, a crime of the third degree, contrary to N.J.S.A. 2C:20-3 (count six).
Defendant moved to sever count six from counts one through five and to suppress his confession. Both motions were denied.
Following trial, a jury found defendant guilty of counts one, two, three, four, and six. Count five had previously been dismissed on the State's motion.
The trial judge found four aggravating factors (risk of recidivism, N.J.S.A. 2C:44-1a(3), need to deter, N.J.S.A. 2C:44-1a(9), the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1), and victims were sixty years of age or older or disabled, N.J.S.A. 2C:44-1a(12)) and no mitigating factors. See N.J.S.A. 2C:44-1(a)-(b). He imposed two consecutive life sentences, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA),*fn3 N.J.S.A. 2C:43-7.2, on counts one and two. Defendant was sentenced to five years' imprisonment with a two and one-half year period of parole ineligibility on count six, to run consecutively to his sentences on counts one and two. Appropriate fines were also imposed. Finally, counts three and four were merged into counts one and two. Defendant's aggregate minimum sentence is 130 years' imprisonment.
Defendant appeals his conviction and sentence and presents the following arguments for our consideration:
THE TRIAL COURT'S EXTENSIVE AND FACIALLY PARTISAN QUESTIONING OF WITNESSES WAS EXCESSIVE AND PREJUDICIAL, NECESSITATING REVERSAL.
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING THE JURY'S REQUEST FOR THE JURY CHARGE IN WRITING.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
B. THE QUANTUM OF THE SENTENCE IS EXCESSIVE.
The first issue considered is whether the trial judge's intervention in the proceedings was improper and resulted in depriving defendant of a fair trial. Defendant's trial counsel did not raise any objection to the trial judge posing questions to prosecution or defense witnesses. Therefore, we may reverse defendant's conviction only if we find that the trial judge's behavior constitutes plain error. R. 2:10-2. In determining whether an alleged error is plain error, courts must determine if the nature of the error is "clearly capable of producing an unjust result." Ibid. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Our Supreme Court has held that trial judges possess "broad discretion" as to when and how to participate in a given criminal case, however, the Court has cautioned that a judge must maintain an impartial atmosphere and avoid the appearance of supporting either the defense or the prosecution. State v. Ray, 43 N.J. 19, 25 (1964) (quoting State v. Guido, 40 N.J. 191, 207 (1963)). The Court warns [The trial judge] should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. [Ibid. (quoting Guido, supra, 40 N.J. at 207).]
When intervening to question witnesses, the trial judge should lead jurors to understand that the purpose of the intervention is to aid their understanding, not to advance the case of one side or the other. Ibid. See also State v. Taffaro, 195 N.J. 442, 451 (2008) (holding that the trial court's extensive questioning of a witness, while facially neutral, could possibly have signaled disbelief to the jury).
One of the recognized purposes of judicial intervention in the questioning of witnesses is to clarify testimony for the jury. Ibid. For example, in a murder case, the Supreme Court held that the trial judge properly interceded and questioned a sixteen-year old witness whose testimony was ambiguous. State v. Cohen, 211 N.J. Super. 544 (App. Div. 1986), certif. denied, 107 N.J. 115 (1987). We have also determined that it is not an abuse of discretion to question a witness, even when those questions would have been better left to the prosecutor, so long as those questions are relevant and are not "beyond justification as attempts by the court to clarify the issues." State v. Kelly, 118 N.J. Super. 38, 51-54 (App. Div.), certif. denied, 60 N.J. 350 (1972). Thus, so long as a trial judge maintains an impartial atmosphere, and makes clear to the jury that credibility determinations are solely a jury function, the judge has not committed reversible error. See State v. Ross, 162 N.J. Super. 47, 52 (App. Div. 1978), aff'd in part, rev'd in part, 80 N.J. 239 (1979).
In this case, the trial judge questioned both prosecution and defense witnesses when he perceived an ambiguity in the witness' testimony. The judge also made a point of reminding the jury members that they were not to give any additional weight to the questions he asked and that they remained the sole finders of fact in the case. The trial judge intervened a total of four times during defendant's six-day trial.
The first intervention occurred after the defense finished its cross-examination of Detective Thievon, the detective who met defendant and his female companion at the Dover Township police station. The trial judge's questions to Detective Thievon were brief and dealt entirely with whether defendant and his friend were ever left alone together in the interview room where they were held. After questioning Detective Thievon, the judge immediately instructed the jury concerning the reason for his questions. The judge stated:
Ladies and gentlemen, every once and a while, I ask some questions. You can't put any more importance into the questions that I ask than questions asked by counsel. When I ask questions, you're not to think that it's indicative of any opinion by the Court as to how the case should be decided or as to the merits of the testimony or the credibility of the testimony.
I want you to understand that I ask questions for your benefit. Hopefully, my questions maybe are beneficial in eliciting information that's helpful to you. If it's not helpful, and you say, Well, that's a stupid question the Judge asked, I didn't need to know that, disregard it. . . .
But you can't add any special significance to questions asked by me. . . . [Y]ou are the sole judges of the facts, and you cannot add any extra weight or import because I asked a question. Okay?
The trial judge intervened a second time during the cross-examination of Investigator Mitchell of the Ocean County Prosecutor's Office. Defense counsel questioned Investigator Mitchell about why he did not conduct a test to determine if defendant was under the influence of an intoxicating substance at the time of his arrest. Defense counsel asked, "[i]n your police experience, is it common to test for the use of marijuana in a urine test?" to which Investigator Mitchell responded "I've never conducted one of those tests. I don't know." At that point, the trial judge broke in with the following set of questions:
The Court: Let me ask you this question. You've gone to investigative schools?
The Witness: Yes, sir.
The Court: How many?
The Witness: Numerous.
The Court: You've been working major crimes for eleven years? Twelve years?
The Witness: Yes, sir.
The Court: In your experience, have you ever heard, seen or otherwise participated in any training, experience or police investigative work that included taking a urine sample of somebody you were about to interview?
The Witness: No.
After intervening, the judge did not instruct the jury that his questions were not to be afforded more weight than the attorney's questions. However, the judge had instructed the jury extensively regarding judicial questioning of witnesses the preceding day.
Defendant testified at length at trial. He was examined, cross-examined, redirected, and recrossed. When defendant took the stand in his own defense, he claimed that he did not remember shooting his parents at the time of trial or at the time he gave his confession to the police. According to defendant, on the day of the murders, he had smoked marijuana several times. He also stated that he had taken the prescription painkiller Oxycontin the day before the shootings. Defendant claimed that as a result of his drug use, he did not remember anything about the shootings except that he took the gun out of the cabinet with the intention of committing suicide and that at some point he hung up a cordless phone that Mr. Napoleon was using. He also claimed to remember Mr. Napoleon saying "I love you," and his own response of "I love you too." At the end of defendant's extensive testimony, the trial judge questioned the defendant in the following manner:
The Court: I have a question just for clarity. Is it your testimony here that you remember taking the phone and hanging it up?
The Witness: I just remember hanging it up. I don't remember taking the phone.
The Court: And you remember Mr. Napoleon saying words to you?
The Witness: Yes.
The Court: And you remember that today?
The Witness: Yes.
The Court: And you remembered that when you spoke to the police?
The Witness: I don't know.
The Court: Okay. But everything else from the time you went into the house and took the luggage in, until you were in the police station, you don't remember?
The Witness: Correct.
The Court: But you remember hanging the phone up.
The Witness: I remember hanging the phone up.
The Court: And you remember Mr. Napoleon saying those words to you?
The Witness: Yes.
The Court: And you saying those words to him?
The Witness: Yes.
The judge's questions essentially summarized and clarified the defendant's lengthy testimony for the jury. At the conclusion of this colloquy, the trial judge again cautioned the jury that no additional weight should be afforded to the questions asked by the judge, using much the same language as quoted above.
Defendant also offered Dr. John Verdon, an addiction expert, as a defense witness in an attempt to show that defendant was either voluntarily intoxicated at the time of the murders, or alternatively, that he was suffering from diminished capacity. Dr. Verdon testified extensively.
Defendant objects, for the first time on appeal, to the trial judge's questioning of Dr. Verdon concerning how long a person remains under the influence of marijuana. The trial judge inquired as to whether defendant could still have been "under the influence" six hours after he claimed to have ingested the drug. He also questioned Dr. Verdon regarding his definition of "under the influence," at one point asking Dr. Verdon if he defined having a hangover as being "under the influence" of alcohol:
The Court: If you're under the influence of alcohol, by your standard, even the next morning, when you're hung over, you're still under the influence. Is that what we're talking about?
The Witness: Well, to sort of put the analogy the same, its - the burnt feeling that cannabis-dependence people talk about would be like that hangover.
The Court: All right.
The Witness: It would be different, but similar.
The Court: And - and in your terminology, as a professional, that's still under the influence?
The Witness: No. I would say that's a hangover effect.
The Court: Okay. So it's not under the influence?
The Witness: At that point, the next day. But five or six hours later, when he made the statement, he -
The Court: All right. So if he's signing this statement at 10:03 p.m., that's when he was initialing his statement -
The Witness: Yes.
The Court: - 10:03 -
The Witness: Right.
The Court: - he's still under the influence -
The Witness: He certainly could have been.
After this colloquy, the trial judge immediately cautioned the jury about the his role in questioning witnesses, and the weight they should afford to those questions. Additionally, during the jury charge, the trial judge once again admonished the jury regarding his questioning of witnesses during the trial, specifically noting that "Questions asked by the Court are not to be taken as any indication of any belief or opinion on the part of the Court as to how the case should be decided."
Our review of the record indicates that the trial judge did not act in a partisan manner, nor did he question the credibility of defense witnesses or impugn the defendant's character. Guido, supra, 40 N.J. at 194-208; Ray, supra, 43 N.J. at 27-29. He intervened at times when he felt that the witnesses' testimony needed to be clarified and, therefore, acted within his discretion. Notably, the trial judge questioned both prosecution and defense witnesses in an evenhanded manner and repeatedly instructed the jury that his questions should not be given more weight than those asked by the attorneys. He also repeatedly advised the jury that it was the sole finder of fact in the case. After consideration of the entire record, we do not find that the intervention of the trial judge indicated partiality or deprived defendant of a fair trial.
We next address defendant's contention that the trial judge erred in denying the jury's request for the jury charge in writing. Defendant makes this argument for the first time on appeal. This court may only disturb the trial judge's denial of the jury's request if we find that the judge committed plain error, i.e., but for the error the jury may have reached a different verdict. R. 2:10-2; Macon, supra, 57 N.J. at 336.
"The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room." R. 1:8-8(a) (emphasis added). Traditionally, New Jersey juries have received only oral instructions from the trial judge prior to the start of deliberations. State v. Lindsey, 245 N.J. Super. 466, 475 (App. Div. 1991). Judges did not have the discretion to provide juries with written instructions until Court Rule 1:8-8 was amended in 1982. Furthermore, we have recognized the dangers inherent in giving a jury written instructions to refer to while in the jury room.
Id. at 475, 477. Levels of literacy and comprehension may differ among jurors, leaving some with no real understanding of the written instructions. Id. at 477 (citing State v. Norris, 10 Kan. App. 2d 397, 588 (Kan. App. 1985)).
In this case, in response to the jury's request for a written copy of his instructions, the trial judge rationally articulated his concern that providing a written copy of his charge would distract the jury from its task as fact finder. He also told the jury in no uncertain terms that he would explain the law to them as many times as necessary and in as simple terms as possible, if asked to do so. Because Rule 1:8-8(a) clearly states that it is within the court's discretion to submit a written copy of the jury instructions to the jury, we conclude that the trial judge did not abuse his discretion when he denied the jury's request.
We next address defendant's contention that the trial judge erred by imposing an excessive sentence. Defendant argues that the trial judge committed reversible error when he imposed consecutive sentences on the murder convictions. N.J.S.A. 2C:11-3. Defendant also argues that the trial judge erred when he applied four aggravating factors but failed to find any mitigating factors. N.J.S.A. 2C:44-1(a)-(b).
The Supreme Court has stated that when a trial court is asked to determine whether sentences for multiple offenses should be served concurrently or consecutively the court "should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing." State v. Yarbough, 100 N.J. 627, 630 (1985). In State v. Yarbough, the Court announced factors for determining when consecutive sentences may appropriately be imposed for multiple offenses.
Id. at 643-44. Those factors include
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
[Id. at 644.]
The Court has held that "[c]onsecutive sentences are not an abuse of discretion when the crimes involve multiple victims and separate acts of violence." State v. Roach, 146 N.J. 208, 230 (1996) (citing State v. Louis, 117 N.J. 250, 254 (1989)). Furthermore, the Court has determined, in the context of the vehicular homicide of multiple victims, that it is not an abuse of discretion to impose consecutive sentences where the only Yarbough factor is the existence of multiple victims. State v. Carey, 168 N.J. 413, 419 (2001); State v. Molina, 168 N.J. 436, 438 (2001). Thus, even where the offenses are not predominantly independent of each other and occur at the same time and place during the same violent act, multiple victims and numerous convictions can still support the imposition of consecutive sentences. Carey, supra, 168 N.J. at 427-28.
When balancing the factors supporting consecutive and concurrent sentences, courts must apply the factors "qualitatively, not quantitatively," and look to whether the existence of one factor renders the group of offenses collectively worse than they would be had that factor not been present. Ibid. Our Supreme Court has stated that "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." Id. at 428.
Consecutive sentences are appropriate in cases with multiple victims because:
[a] defendant's culpability [where defendant has injured or killed multiple victims] exceeds the culpability of someone who commits the same group of offenses against a single victim because culpability is influenced not only by the single act [...], but also by the number of victims killed or caused to sustain serious bodily injuries the singular criminal event generates.
[Id. at 429.]
Prior to imposing consecutive sentences, the trial judge considered the Yarbough factors and determined that consecutive sentences were appropriate. The trial judge properly took into account that defendant's crimes were not predominately independent of one another, but were committed "so closely in time and place as to indicate a single period of aberrant behavior." Yarbough, supra, 100 N.J. at 643. However, the trial judge also correctly noted that each killing was a separate act of violence and defendant was sentenced for a number of offenses (two counts of first degree murder and one count of theft by unlawful taking).*fn4 Specifically, the judge gave great weight to the fact that there were multiple victims. He stated "given the fact that these are separate victims of the most heinous offense known in our law, murder, separate and consecutive sentences are called for . . . ." Given that defendant killed two people, in two separate acts of violence, we find that the trial judge did not abuse his discretion when he imposed consecutive sentences.
We next address defendant's contention that the quantum of his sentence is excessive. Defendant argues that the trial judge misapplied the statutory aggravating and mitigating factors found in N.J.S.A. 2C:44-1(a)-(b), resulting in a sentence that is excessive in the aggregate. While the sentence may not be excessive, defendant is correct that the trial judge misapplied statutory aggravating factor N.J.S.A. 2C:44-1(a)(12).
Appellate review of a sentencing decision calls for us to determine whether the trial court clearly erred "by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984). In order to make that determination the appellate court may:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
The Supreme Court has held that appellate courts may only disturb a trial judge's sentencing decision in three situations. Carey, supra, 168 N.J. at 430. Those situations are: "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." Ibid. Consideration of inappropriate aggravating factors violates the sentencing guidelines and can constitute reversible error. State v. Kromphold, 162 N.J. 345, 355 (2000). Double counting aggravating factors is also impermissible. Yarbough, supra, 100 N.J. at 644.
At sentencing, the trial court found four aggravating factors: N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense and defendant's role therein); N.J.S.A. 2C:44-1a(3) (the risk defendant will commit another offense); N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others); and N.J.S.A. 2C:44-1a(12) (the defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled). He found that no mitigating factors applied.*fn5
Aggravating factor N.J.S.A. 2C:44-1a(1) requires the court to consider "whether or not [the crime] was committed in an especially heinous, cruel or depraved manner." Id. In this case, the trial judge found that the murders were particularly heinous because defendant set a trap for Mr. Napoleon and Ms. O'Brien. "[L]ike the spider to the fly, he led them to believe that nothing was wrong," by cleaning the house, picking them up from the airport as scheduled, driving them home, and carrying their luggage inside. The trial judge's findings with respect to the murders are supported by competent credible evidence in the record. Given the sequence of events leading up to the murders, it is not unreasonable to conclude that defendant set a trap for Mr. Napoleon and Ms. O'Brien. This court has held that when "the provocation to kill [is] slight [...] the nature and circumstances of the offense and the role of the actor therein is an aggravating factor." State v. Teat, 233 N.J. Super. 368, 373 (App. Div. 1989). Here, defendant may have had a motive to kill (concealing his theft from his parents), but he was certainly not provoked. Because he laid a trap for his victims and attacked without provocation, a reasonable person could conclude that defendant committed the murders in a particularly heinous manner. Thus, the trial judge did not abuse his discretion when he found that N.J.S.A. 2C:44-1a(1) applied.
The trial judge also found there was risk that defendant would commit another offense. N.J.S.A. 2C:44-1a(3). The judge reasoned that defendant had shown that he "would not hesitate to commit another crime if it was in his best interest as he saw it." If one accepts that defendant murdered Mr. Napoleon and Ms. O'Brien for monetary gain and to avoid detection of the theft he had committed, it is reasonable to conclude that he would commit another offense if he felt it was necessary to protect his interests.
In addition, the trial judge found the need for deterrence to be an aggravating factor. N.J.S.A. 2C:44-1a(9). This statutory factor is designed to deter both individual defendants and others in society from committing similar crimes. Finding this aggravating factor in the case of a double homicide is not unreasonable.
Finally, the trial judge found that "[t]he defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled." N.J.S.A. 2C:44-1a(12). However, the record discloses that neither of the victims were "60 years of age or older, or disabled." Mr. Napoleon and Ms. O'Brien were fifty-seven and fifty-four respectively at the time of their deaths. Moreover, the trial judge was aware of the victims' ages before finding this factor present.
Accordingly, the trial judge erred in applying this factor. Because neither Mr. Napoleon nor Ms. O'Brien were sixty or older, nor were they disabled, the trial judge incorrectly considered N.J.S.A. 2C:44-1a(12) as an aggravating factor and defendant's sentence must be vacated and the matter remanded for resentencing.
Affirmed in part, reversed in part, and remanded for resentencing.