On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Justice Albin
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
ALBIN, J., writing for a majority of the Court.
In this appeal, the Court considers whether defendant was denied her constitutional right to the effective assistance of counsel at sentencing.
Defendant, Marie Hess, shot and killed her husband, Jimmy Hess, a police officer. In defendant's first statement, given on the day of the shooting, she described a history of physical and mental abuse, claimed that her husband pointed a gun at her head the night before she shot him, and stated that she accidentally shot him when attempting to scare him. The next day, upon admission to a psychiatric hospital, defendant maintained that the shooting was an accident, that her husband was abusive, that she was afraid of him, that if she did not kill him he would have killed her, and that she lost about twenty-eight pounds in the months leading up to the shooting. The grand jury returned an indictment charging defendant with first-degree murder. Defendant's attorney retained a private investigator who interviewed people with first-hand information about the couple's marital relationship, which revealed that Jimmy had abused and threatened defendant and attempted to control her. More than a year and a half after the first statement, defendant gave a second statement in which she admitted to the intentional killing of her husband, downplayed the level of abuse in her relationship, and offered a different motivation for the shooting --that her husband would soon discover that she was hiding the family's financial difficulties. Defendant entered into a plea agreement in which she pled guilty to aggravated manslaughter; acknowledged that she would receive a thirty-year sentence; conceded that the aggravating factors outweighed the mitigating factors as to make the term appropriate; agreed that neither she nor her attorney would affirmatively seek a lesser term of imprisonment; and agreed not to appeal her conviction. The plea agreement did not bind the court to give any particular sentence, and nothing in the plea agreement denied defense counsel the opportunity to provide mitigating evidence.
At sentencing, without objection from defense counsel, the prosecutor played a professionally produced seventeen-minute video set to popular and religious music consisting of a montage of approximately sixty still photographs of Jimmy's life from childhood to adulthood, including a photograph of his tombstone, four home-video clips of Jimmy, a television segment that covered his funeral, and three poems. The prosecutor's remarks described defendant and Jimmy as "America's couple"; detailed defendant's financial motives and the calculated manner in which she shot her husband; emphasized the aggravating sentencing factors; and suggested that defendant's character nullified any mitigating factors. Defense counsel's short response stated the plea agreement "somewhat tied" his hands; did not mention any of the evidence supporting that defendant was a battered woman who feared for her life; did not argue against any aggravating factor or in favor of a mitigating factor; and asked the court to independently evaluate whether a thirty-year sentence was appropriate. The court found support for two aggravating factors and two mitigating factors; expressed that they were "at least in balance if not for the fact that the aggravating factors really do outweigh the mitigating factors"; and concluded that "this is the kind of a case where [defendant] certainly could have been sentenced to more had she gone to trial . . . and been found guilty." On the judgment of conviction, the court wrote: "This was a negotiated plea agreement between the Prosecutor and the defendant. It appears fair and in the interests of justice, the Court is imposing the recommended sentence."
Defendant did not pursue a direct appeal. Defendant filed a petition for post-conviction relief (PCR) claiming that she was denied her constitutional right to the effective assistance of counsel at sentencing. At the PCR hearing, defendant's PCR counsel alleged that trial counsel made numerous errors, including that he failed to argue mitigating factors, to bring to light evidence suggesting defendant was a battered woman, and to object to the video. PCR counsel also submitted a report of Dr. Dawn Hughes, a clinical psychologist who he had evaluate defendant and review her case file, concluding that the evidence is consistent with Battered Women's Syndrome. The PCR court denied defendant an evidentiary hearing and rejected her application for relief. The Appellate Division affirmed. The panel, among other things, found that Rule 3:22-4, which prohibits a defendant from raising issues in PCR proceedings that could have been raised in a prior proceeding, barred defendant's claim. The Supreme Court granted defendant's petition for certification. 203 N.J. 95 (2010).
HELD: Defendant was denied her constitutional right to the effective assistance of counsel because her attorney failed to present and argue mitigating evidence at sentencing. Also, the plea agreement provisions that restrict the right of counsel to argue for a lesser sentence are void.
1. PCR is a proper vehicle for defendant's ineffective-assistance-of-counsel claim because much of the mitigating evidence that supports her argument that she was a battered woman was not presented to the sentencing court. Thus, an ineffective-assistance-of-counsel claim could not have been raised on direct appeal. (pp. 25-27)
2. A defendant must satisfy the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), to establish a claim for ineffective assistance of counsel: (1) that counsel's performance fell below an objective standard of reasonableness, such that he was not functioning as the "counsel" guaranteed by the Sixth Amendment; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The first prong was satisfied because defendant's attorney withheld evidence that defendant was physically and mentally abused, threatened, and afraid of her husband; and failed to offer the argument that she was a battered woman. Evidence of Battered Women's Syndrome was admissible and would have supported several mitigating factors. Defense counsel's failure to inform the trial court of relevant information so that the court could independently identify and weigh mitigating factors cannot be ascribed to strategy or reasonable professional judgment, particularly given that the plea agreement did not prohibit defense counsel from conveying such information. (pp. 27-35)
3. State v. Warren, 115 N.J. 433 (1989), disapproved of a plea-bargaining practice that enabled a prosecutor to withdraw a negotiated guilty plea if the trial court imposed a sentence more lenient than the one recommended in the plea agreement. State v. Briggs, 349 N.J. Super. 496 (App. Div. 2002), found that a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the plea agreement. The Court affirms the principles set forth in Briggs, which is a natural extension of Warren. Our jurisprudence does not permit restrictions on the right of counsel to argue for a lesser sentence, against an aggravating factor, for a mitigating factor, or how the factors should be balanced because it would deprive defendants of the needed advocacy of their attorneys and deny our courts the needed insight to administer justice. (pp. 35-39)
4. The failure to present mitigating evidence or argue for mitigating factors was ineffective assistance of counsel because defendant's attorney was not functioning as the "counsel" guaranteed by our Federal or State Constitution and, based on the evidence and argument withheld from the sentencing court, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Furthermore, the plea agreement provisions that restrict the right of counsel to argue for a lesser sentence are void, and the plea may be vacated at the option of the State. (pp. 39-42)
5. Although the Victim's Bill of Rights permits a family member of a homicide victim to make a statement about the impact of the crime, which includes presenting photographs or video showing the victim as he lived in the time before his death, the music and the photographs of the victim's childhood and of his tombstone, and the television segment about his funeral, do not project anything meaningful about the victim's life at the time of his death. Defense counsel should have objected and those portions should have been redacted because they contain little to no probative value, but instead have the great capacity to unduly arouse or inflame emotions. (pp. 42-48)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.
JUSTICE RIVERA-SOTO, DISSENTING, joined by CHIEF JUSTICE RABNER, is of the view that there is no logical or reasonable basis to prohibit categorically the State and a defendant from bargaining away the right of allocution at sentencing in exchange for a separate plea agreement advantage; and that even under the majority's victim-impact statement standard, the video was properly admitted.
JUSTICES LONG, LaVECCHIA and HOENS join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion in which CHIEF JUSTICE RABNER joins.
JUSTICE ALBIN delivered the opinion of the Court.
In a negotiated agreement with the State, defendant Marie Hess pled guilty to aggravated manslaughter for killing her husband James (Jimmy) Hess, a City of Burlington police officer. Under the terms of the agreement, defendant was required to acknowledge that she would receive a thirty-year prison sentence, subject to a parole disqualifier (twenty-five-and-one-half years); to concede that the aggravating factors outweighed the mitigating factors; and to agree that neither she nor her attorney would seek a lesser term of imprisonment. At defendant's sentencing, despite evidence in his possession suggesting that defendant suffered from Battered Women's Syndrome when she killed her husband, counsel offered no mitigating evidence in support of a lesser sentence. Nothing in the plea agreement specifically precluded him from presenting such evidence. Moreover, counsel did not object to the plea agreement's restrictions on his right to argue on his client's behalf at sentencing; to the State's introduction of a video of the victim's life set to popular and religious music; or to an invective-filled victim-impact statement given by a police officer who served with defendant's husband.
In this appeal from the denial of defendant's motion for post-conviction relief, we conclude that defendant was denied her constitutional right to the effective assistance of counsel at sentencing. Defense counsel deprived the court of mitigating evidence that was necessary for a meaningful sentencing hearing. That alone so undermined the adversarial process that counsel no longer was serving in the role of an advocate as envisioned in our criminal justice system. Moreover, the constraints embedded in the terms of the plea agreement -- drafted by the State and accepted by defense counsel -- denied the court of arguments that may have shed light on relevant sentencing factors and how they should be weighed. The terms of that plea agreement were incompatible with our holding in State v. Warren, 115 N.J. 433 (1989), and the decision in State v. Briggs, 349 N.J. Super. 496 (App. Div. 2002), and impinged not only on the role of counsel at sentencing, but also on the role of our courts as independent arbiters of justice. Last, defense counsel was constitutionally ineffective for failing to challenge the unduly prejudicial video tribute to the victim scored to popular and religious music.
Defendant has sought only a new sentencing hearing. Because the plea agreement's restrictions on defense counsel's right to argue for a lesser sentence are in contravention of this State's decisional law, those terms are void. The State is free to proceed to a new sentencing hearing or to vacate the plea.
Defendant Marie Hess met her future husband Jimmy when she was seventeen years old. The two were married ten years later in 1992. In 1995, Jimmy became a police officer in the City of Burlington, where they came to live. On the morning of August 19, 1999, the thirty-four-year-old defendant shot Jimmy in the head as he lay sleeping in bed.
After shooting her husband, defendant wrapped the gun in a T-shirt and stored it in a kitchen cabinet, and then went about the ordinary course of her day. She went off to work as a toll collector at the Burlington-Bristol Bridge. After completing her shift at 11:30 a.m., she took her husband's uniforms to the cleaners. She next picked up a pizza and returned home with it. She then entered her bedroom, where she observed her husband's head covered in blood, and called the 9-1-1 dispatcher at 12:15 p.m. The police arrived at defendant's home shortly afterwards.
No one disputes the fact that defendant killed Jimmy. The only issue was, why. Were they "really America's couple," as later described by the prosecutor, or was she the psychologically, and sometimes physically, battered woman as she described in her first full statement to the police and in her post-conviction-relief petition?
Defendant gave her first formally recorded statement to detectives of the Burlington County Prosecutor's Office at 10:35 p.m. on the day she killed her husband.*fn1
Defendant's August 19, 1999 Statement
Defendant admitted shooting her husband, accidentally, when it was her purpose only to scare him. She described a history of domestic violence, psychological belittlement, and victimization leading up to the killing. In the months before the shooting, Jimmy became increasingly violent, the constant refrain being that she could "do nothin' right." They were having problems related to the house that they were in the process of purchasing. She was blamed for the delay in getting a mortgage, for not keeping papers in order, and for not wanting to make the move. She was blamed for the problems with their telephone service. A month earlier, Jimmy had "put his service weapon to [her] head and told [her] if [she] didn't straighten up [she] could disappear down in the" Pine Barrens. On an earlier occasion, Jimmy had physically assaulted her, pulling her hair and punching her on the lip, warning her that "he would be willing to lose his job and go back to construction work if [she] called the cops."
On the evening before the shooting, after completing his shift, Jimmy visited a local bar and, shortly after midnight, returned home heavily intoxicated. He yelled at defendant because his dinner was not ready. He complained that he was not getting his phone messages. He then "took his gun off the table" and pointed it at defendant's head, and told her to "straighten out" or else.
Defendant stayed on the couch that night, unable to sleep, watching the clock, and fearful that Jimmy might come at her. At 7:00 a.m., defendant left the couch and readied herself for work. She heard Jimmy awake, yelling that the telephone was disconnected, and she responded that she would tend to it after work. She next went to the basement and retrieved a gun. She then went to the bedroom where Jimmy had fallen back asleep. Defendant wanted Jimmy to "roll over and see" the gun pointing at him like she had seen it pointed at her, she wanted to scare him, and she wanted him to be "scared enough to say he was sorry for everything, and that [they] would work everything out." But the gun "went off accidentally."
That day, August 19, defendant was arrested and charged with the murder of her husband. The next day, she was admitted to the Forensic Psychiatric Hospital in Trenton "because of suicidal ideations."
Forensic Psychiatric Hospital
On her admission to the hospital, defendant reported that "her husband was physically abusive towards her and she was afraid of him." She also stated that "if she did not kill him he would have killed her." She maintained that "she accidentally shot" her husband and "wanted to kill herself" as well. In the four months before shooting her husband, defendant "had lost about 28 pounds of weight" and "had difficulty sleeping." After four days of observation, defendant was released from the hospital and transferred to the Burlington County Jail.
On March 23, 2000, the Burlington County grand jury returned an indictment charging defendant with purposely or knowingly causing the death of her husband in violation of N.J.S.A. 2C:11-3(a)(1) and (2).
Defendant's attorney retained a private investigator, Richard Strohm, who, in March and April of 2000, conducted interviews of nine people -- friends and co-workers of Marie and Jimmy Hess -- who had first-hand information about their marital relationship. Those interviews revealed that Jimmy had abused and threatened his wife and attempted to dominate and control her.
Herbert Wickward was Jimmy Hess's long-time good friend. They hunted and fished together, and their families socialized with each other. Wickward remembered that on a fishing trip when defendant forgot the bait, or on a hunting trip when she forgot the shells, Jimmy called her "a stupid bitch and just belittled her. And he didn't care who was around." On a trip to the Poconos, when defendant spilled some grease one morning while cooking, Jimmy "threw up his fist and pushed her back to the table" and verbally berated her for fifteen minutes. On such an occasion, when Jimmy was in a rage, with his face "beet" red, he would listen to no one.
Wickward witnessed Jimmy "raise his hands and get in [defendant's] face, and say, shut up you bitch I'll kill you." Several times, Wickward heard Jimmy "threaten to kill [defendant], and . . . threaten to kill himself." Wickward knew that Jimmy drank to excess almost every night, including the night before his death. Although he never observed Jimmy physically assault defendant, on one occasion he saw defendant "with black eyes and abrasions on her face," which defendant explained was caused when "she ran into a door."
Some of the couple's friends noted that defendant would wear sunglasses, even during evening hours, suggesting that she was hiding bruises. Some of Jimmy's friends spoke of his penchant to drink to excess, and more so towards the end of his life. Some noted that defendant lost considerable weight in the months before she killed her husband.
Friends of the couple described Jimmy as "controlling," as treating defendant like a "slave." According to Margaret Fanelle, a neighbor, if Jimmy "told [defendant] to jump she would say how [high]." Defendant carried a portable telephone, even when in the yard or out hanging clothes on a line, because Jimmy "check[ed] on her all the time." Fanelle believed that defendant was afraid of her husband; you could see it "by just looking at her and talking to her." Another neighbor, Andrea Goodman, recalled that Jimmy insulted his wife and made her cry, telling her that "she shouldn't think, and he thinks more in one day than she thinks in a week."
Marylyn Reppert, a mutual friend of the couple, remembered that a month before Jimmy's death she took a whale-boat trip with the Hesses. Reppert noticed that the long beaded braid that defendant always wore in her hair was missing. When Reppert asked what had happened, defendant "looked at Jimmy and then she said I cut it off." Out of her husband's presence, defendant explained that "Jimmy yanked it out of her head." Defendant told Reppert that the night before the shooting Jimmy "came home drunk and was very mad. And he put a gun to her head and told her that he could shoot her and get rid of her body where nobody would ever find it."
The bartender at the Woodshed Bar frequented by Jimmy recalled that Jimmy "lost his temper many times" and even threatened one of her friends, saying "he was going to bury her in the Pines and nothing could happen to him because he was a cop."
Also provided in discovery to defendant's attorney was a statement from Lieutenant Timothy Richardson of the Burlington Police Department, who recounted a fishing trip in Canada a year before Jimmy's death. One evening Jimmy had been drinking "heavily" and became "very violent" and had to be subdued. Indeed, as a result of that episode, Lieutenant Richardson refused to go on the next annual fishing trip if Jimmy was to be part of the excursion.
Defendant's February 26, 2001 Statement
More than a year and a half after giving her first taped statement, defendant gave a second one at the Burlington County Prosecutor's Office. Defendant's attorney accompanied her to the office, but inexplicably left her alone when the formal interrogation session began. Defense counsel gave permission to a Burlington County Prosecutor's detective and the executive assistant prosecutor to question defendant in his absence.
In this statement, defendant offered a different motivation for the shooting and, with prompting from her interlocutors, downplayed the level of abuse in her relationship with Jimmy.
At the outset of the interview, defendant described a Valentine's Day incident when Jimmy became enraged at her at a bar, ripping out the braids from her hair and smashing her "head a couple [of] times against the passenger side window of [a] truck." The interviewer then asked her whether this was "a one-time event," to which she responded, "Yes." Then, through a series of leading questions, the interviewer got defendant to recant her prior description of Jimmy as a violent person:
Detective: In prior statements you have painted a picture of JIMMY as being a violent person. Okay, that's not an accurate description of JIMMY, is it?
Defendant: No. He would get loud and sometimes make occasional threats but generally he would walk away.
Detective: Okay. As a matter of fact, he has on numerous occasions by your own statements, walked out of the house or walked away from you rather than to either continue an argument or become physical in any way. Is that correct?
Defendant: Yeah, that's correct.
Through more leading questions, defendant described how the family finances -- for which Jimmy held her responsible -- had snowballed out of control. Although Jimmy had expected to purchase his dream home in Chatsworth, defendant was not enamored with the idea. Defendant believed that the couple would not qualify for a mortgage for a new home because they were not making timely payments on their existing mortgage. She also believed that she would be blamed for the failure to obtain a mortgage. She did not submit an application for a mortgage because she knew it would be rejected. Instead, she engaged in an elaborate cover-up. She generated a fake mortgage-approval letter so Jimmy would think that they had been approved for the mortgage. She knew that her scheme to keep Jimmy in the dark about the seriousness of their financial problems was about to end.
When Jimmy came home for dinner at 12:30 a.m. on August 19, the two argued about their malfunctioning telephone and the impending move to a new home. He made it clear that he would purchase the house with or without her, and also told her that he suspected that she was attempting to undermine the securing of a mortgage. Defendant admitted that she was emotionally hurt and angry that the new house meant more to Jimmy than his relationship with her, and that he would seek help from his family rather than rely on her.
That evening she lay on the couch thinking that Jimmy would soon learn about her mortgage-application ruse. She did not "want him to find out that [she] had messed up." She was angry with herself because she could not control the finances and angry about their fights in which he called her "stupid." She did not come clean with Jimmy about the state of their finances because "it would bring on an argument and name callin[g]" about how she could not "handle things right." There on the couch she decided to kill Jimmy.
In the morning, she retrieved and loaded a gun, wrapped it in a T-shirt to avoid leaving fingerprints, entered Jimmy's bedroom, cocked the hammer of the gun, aimed the gun towards his head correcting for her double vision, and fired once. She then went to work as though it were a normal day. Even when she called 9-1-1 that afternoon, she somehow hoped that she would not be caught.
The State and defendant entered into a plea agreement, the terms of which were set forth in an April 5, 2001 letter from the executive assistant prosecutor to defense counsel. The letter makes clear that the agreement was prompted by defendant's "cooperation" -- her statement given two weeks earlier. The "cooperation" sought was for defendant to "convey the truth as to the circumstances which led to her taking the life of her husband, and provide a truthful factual recitation of the manner in which she carried out the homicide."
Under the terms of the agreement, defendant would plead guilty to aggravated manslaughter; acknowledge that she would receive a thirty-year state-prison sentence with a twenty-five-and-one-half-year parole disqualifier; concede "that the aggravating factors under N.J.S.A. 2C:44-1a so preponderate over the mitigating factors set forth in N.J.S.A. 2C:44-1b as to make the maximum term of 30 years appropriate"; agree that neither she nor her attorney would "affirmatively seek a lesser term of imprisonment from the Court"; and "agree not to appeal her judgment of conviction."
In return, the State agreed that it would dismiss the murder charge, thus "reducing by 4 1/2 years the mandatory minimum for murder, i.e. thirty years without parole, as the benefit [defendant] derives for her cooperation." The prosecutor disclaimed any intention to bind the court to the negotiated sentence, noting that the "principles enunciated in State v. Warren, 115 N.J. 433 (1989)," would not allow such a restriction on the court's sentencing discretion. However, the prosecutor "believe[d] it permissible to bind [defendant] to this agreement."
On April 16, 2001, the plea agreement was placed on the record in open court. During the plea colloquy, defendant admitted to intentionally shooting and killing her husband, explaining through a series of leading questions that she had been hiding the family's financial difficulties from her husband and that the shooting was the culmination of "tensions" that had been rising at home.
At sentencing on June 22, 2001, without objection from defense counsel, Burlington Township Police Detective Michael Simmons gave a "victim-impact" statement in which he declared that defendant carried out an "execution," "an act of pure uncontrollable hate," a "cold blooded murder" and "cowardly act," and that Jimmy was also part of a larger fraternal family, a police "brotherhood." Jimmy's sister then addressed the court.
Next, without a defense objection, the prosecutor played a professionally produced seventeen-minute video. The video consists of a montage of approximately sixty still photographs of Jimmy's life from childhood to adulthood, including a photograph of his tombstone. It also consists of four separate home-video clips of Jimmy: his graduation from the police academy, coaching a baseball game, and appearing on fishing trips. The video includes a television segment that covered Jimmy's funeral. Three poems are displayed over some of the photographs and video clips. The entire video is accompanied by a medley of music: a song by the Beatles, "Here Comes the Sun"; a holiday song, "I'll be Home for Christmas"; two country songs, "I'm from the Country" and "Live, Laugh, Love"; one religious hymn, "Here I Am Lord"; and military-like cadences.
The prosecutor in remarks covering twelve transcript pages described how the State viewed the killing "as a murder case."
He stated that "to all who knew [defendant and Jimmy] they were really America's couple." He detailed what he believed were the financial motives behind the killing and the deliberate and calculated manner in which defendant shot her husband. He emphasized the aggravating sentencing factors and suggested that defendant's character "virtually wipes out any of the mitigating factors."
In response to that tour-de-force presentation, defense counsel stated that his hands were "somewhat tied" by the plea agreement. Defense counsel never mentioned any of the evidence that he developed from his client or from other witnesses that defendant was a physically and psychologically battered woman, who had been threatened and had feared for her life. He mentioned nothing redeeming about her character or her otherwise blameless life. His remarks comprised little more than one transcript page. He did not argue against an aggravating factor or in favor of a mitigating factor. He conceded that he could not, "pursuant to the plea agreement, ask the court to sentence [defendant] to less than" thirty years. Nevertheless, he asked the court to "make an independent evaluation of the defendant" and of "the aggravating and mitigating factors," and to consider whether a thirty-year sentence was appropriate for a thirty-four-year-old woman.
The court found support for aggravating factor number two, "the gravity and seriousness of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), because "Mr. Hess was asleep and . . . just didn't know what was coming," and for aggravating factor number nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). The court also found support for mitigating factor number seven, because defendant had no prior criminal record, N.J.S.A. 2C:44-1(b)(7), and mitigating factor number twelve, because of defendant's willingness to cooperate with law enforcement authorities, N.J.S.A. 2C:44-1(b)(12). The court noted defense counsel's agreement that the aggravating factors outweighed the mitigating factors, and expressed its determination that they were "at least in balance if not for the fact that the aggravating factors really do outweigh the mitigating factors." The court referenced defense counsel's agreement not to argue for a sentence of less than thirty years.
The court ultimately concluded that "while [it was] authorized to sentence less than the plea agreement, this is the kind of a case where [defendant] certainly could have been sentenced to more had she gone to trial on the charge as originally brought and been found guilty." On the judgment of conviction, the court wrote: "This was a negotiated plea agreement between the Prosecutor and the defendant. It appears fair and in the interests of justice, the Court is imposing the recommended sentence." The court sentenced defendant to a thirty-year state-prison sentence subject to a twenty-five-andone-half-year parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Finally, the court advised defendant ...