February 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY DIFRISCO AKA ANTHONY GERARD DIFRISCO, A. DEFRANKO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 87-05-2280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2009
Before Judges Stern, Rodríguez and Waugh.
Following the remand of the Supreme Court for resentencing, State v. DiFrisco (V), 187 N.J. 156 (2006), defendant was resentenced to life imprisonment with thirty years to be served before parole eligibility. Defendant appeals from the imposition of that sentence, based on the trial judge's reading of the Supreme Court opinion as requiring a life sentence, and contends that "the Supreme Court intended that the trial court exercise its discretionary sentencing power to sentence defendant within the range permitted under N.J.S.A. 2C:11-3b" and that "the trial court's failure to exercise its sentencing discretion was not harmless error."
In the final paragraph of the majority opinion, the Supreme Court wrote:
Accordingly, because proportionality review and penalty review both determine whether a death sentence was properly imposed, we hold that the two votes must be combined. In this matter, a combined vote reveals that a majority of this Court concluded that defendant should receive a life sentence. We therefore reverse the trial court's denial of defendant's petition for post-conviction relief, vacate defendant's death sentence, and remand to the trial court for imposition of a life sentence.
[187 N.J. at 179.]
We appreciate defendant's arguments ― including the facts that the Supreme Court's death penalty jurisprudence has included some reference to a non-capital sentence as a sentence of life or life imprisonment,*fn1 and that the Court neither focused on this issue nor explained why it directed "a life sentence" as opposed to some other authorized non-capital sentence. See DiFrisco (V), supra, 187 N.J. at 178-79. At the time of defendant's offense in 1986, defendant was exposed to a sentence of thirty years to life imprisonment, with thirty years to be served before parole eligibility, if defendant was not put to death. See N.J.S.A. 2C:11-3b, c (as it then stood). Never- theless, we cannot say that the Supreme Court did not intend what it appears to have said. Defendant's capital sentence was upheld on direct appeal, proportionality review, and the first petition for post-conviction relief. See State v. DiFrisco (II), 137 N.J. 434 (1994); State v. DiFrisco (III), 142 N.J. 148 (1995), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996);*fn2 State v. DiFrisco (IV), 174 N.J. 195 (2002), cert. denied, 537 U.S. 1220, 123 S.Ct. 1323, 154 L.Ed. 2d 1076 (2003). Thus, a life sentence was properly imposed. If our interpretation is incorrect, relief may be obtained from the Supreme Court.