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State of New Jersey v. Irlene S. Keller

December 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IRLENE S. KELLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 04-12-0360.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010

Before Judges Axelrad and Lihotz.

Defendant Irlene Keller appeals from her conviction following a jury trial, wherein she and her husband, co-defendant Bruce Keller, were found guilty of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(3) (count one); second- degree attempted theft by deception, N.J.S.A. 2C:20-4(a) and N.J.S.A. 2C:5-1 (count three); third-degree attempted theft by deception, N.J.S.A. 2C:20-4(a) and N.J.S.A. 2C:5-1 (count four) and second-degree conspiracy, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:17-1(a)(3) (count five). Another charge of third-degree arson, N.J.S.A. 2C:17-1(b)(3) (count two), which was included in the indictment, was dismissed by the State.

After merging count five with count one, the court sentenced defendant to a term of eight years imprisonment on count one, a concurrent eight-year term on count three and a four-year term on count four, to run concurrently with the sentence imposed on counts one and three. The court also ordered applicable fines and assessments.

On appeal defendant argues:

POINT I.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS THE CONSENT TO SEARCH WAS NOT MADE BY DEFENDANT KNOWINGLY AND VOLUNTARILY.

POINT II.

DEFENDANT'S MOTION FOR ACQUITTAL SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO DEFENDANT.

POINT III.

THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION OF AGGRAVATED ARSON AND TWO COUNTS OF ATTEMPTED THEFT BY DECEPTION WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

Following our review of the issues presented on appeal, in light of the record and applicable law, we affirm.

The following facts are taken from the trial record. On September 4, 2002, at 2:05 a.m., ADT, a home security company, notified several fire departments of an activated smoke detector at 281 Goritz Road in Alexandria Township. The residence is owned by defendants, who were found standing in the street outside the residence when emergency personnel arrived. The "large, hot, and intense" fire completely engulfed the 6,000 square foot residence.

While the fire was burning, State Trooper Melvin L. Sanders, II spoke with defendants. Trooper Sanders noticed neither defendant complained of injuries and their clothes showed no sign of soot or fire damage. The couple told Trooper Sanders they were awakened by the fire alarm and smelled gasoline. Co-defendant advised there were gasoline canisters in the garage and on the front porch, although he could not explain why a gasoline canister was stored on the front porch.

Defendant explained the home was recently listed for sale with an asking price of $1,000,000, because she and co-defendant had recently moved to Virginia. Trooper Sanders ...


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