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State v. Kelsey

January 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LYNN KELSEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 02-10-0213.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2009

Before Judges Parrillo and Messano.

Defendant Lynn Kelsey appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. We have considered the arguments she has raised in light of the record and applicable legal standards. We affirm.

On September 15, 2003, pursuant to a plea agreement with the State, defendant pled guilty to the second count of Monmouth County Indictment No. 02-10-2013-I, charging her with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3. The State was free to recommend a ten-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In return for defendant's guilty plea, the remaining counts of the indictment, including the charge of first-degree attempted murder, as well as a second indictment, charging defendant with various drug offenses, were to be dismissed at sentencing.

When she pled guilty under oath before Judge Ira E. Kreizman, defendant provided a factual basis that contained the following details: she had "discussed with two or three people the possibility of killing [her] husband"; she gave his photograph to someone she knew as "Knowledge," who in fact was undercover detective Doug Johnson; she showed Johnson a policy of insurance she had on her husband's life and provided him with her husband's home and work addresses and telephone numbers so that Johnson could "follow him and . . . do the hit[.]" After discussing various "means" by which her husband could be killed, it was agreed that Johnson would "push [her husband] in front of a train," because "if [her husband] w[as] killed in a form of mass transportation, the [insurance] policy . . . provided . . . a $1,000,000 payout." Johnson was to receive $125,000 of the insurance proceeds and defendant intended to marry her indicted co-conspirator, Michael Malone, and possibly move with him to Hawaii. Defendant met with Johnson and Malone on May 7 and 8, 2002 and provided Johnson with more details about her husband's activities, including his usual route to work. It was defendant's understanding that Johnson would follow and kill her husband the next day.

Judge Kreizman questioned defendant about the terms of the plea agreement, which she understood. Defendant clearly indicated to Judge Kreizman that her plea was voluntary, that she was satisfied with the services provided by her attorney and that she understood she was waiving her rights to a trial and to raise affirmative defenses. Specifically, the following exchange took place:

Judge: You have a right to have a trial in this case. At a trial . . . the State is required to prove your guilt beyond a reasonable doubt . . . [and] to present witnesses. [Your attorney] could ask questions, cross examine those witnesses . . . [and] could present witnesses from you on your behalf. You could testify if you wanted to. If you did not want to testify, the jury would be told . . . that they could not use that against you. Are you aware of all that?

Defendant: Yes.

Judge: At a trial you also have a right to raise . . . affirmative defenses, that you were under the influence of alcohol or drugs or that you were under duress or whatever you might have - I'm sure you discussed those things with [your attorney]. You understand that?

Defendant: I do.

Judge: By pleading guilty you're waiving your right to such a trial, you ...


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