On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-02-0235.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court June 9, 2011 Resubmitted September 28, 2011
Before Judges Fuentes, Graves and Harris.
In State v. Calleia, 206 N.J. 274 (2011), the Supreme Court reversed our decision in State v. Calleia, No. A-6218-07 (App. Div. June 22, 2010), and reinstated defendant's conviction for murdering his wife Susan, N.J.S.A. 2C:11-3(a)(2), fourth degree tampering with physical evidence, N.J.S.A. 2C:28-6, and third degree hindering apprehension, N.J.S.A. 2C: 29-3(b)(4), and remanded for us to address defendant's original challenge to the sentence imposed by the trial court.
The trial court sentenced defendant to an aggregate term of fifty years, with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision, both pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant argues that the sentence imposed in this case was excessive. We disagree and affirm.
The facts underlying defendant's conviction were stated in great detail by the Court in Calleia, supra, 206 N.J. at 279-288. We incorporate them by reference here. Against this record, the trial court found aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1). The court took particular note of the impact that the murder of Susan had on their eight-year-old daughter, emphasizing that the child "was very, very, very close to her mother." He elaborated on this issue as follows:
But the circumstances, killing a beloved mother of his own child, leaving that child motherless, that's never going to change. You can't replace a mother's love. And also a certain extent, fatherless.
[The child]'s lost a mother and father in her life. And I think you have to consider that as the circumstances of the offense.
The court also found aggravating factor nine, the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). In the court's view, this was a critical factor in the case, because it was important for society to understand that when "people want to separate, they separate. When love is there and then it's no longer there, that doesn't mean you kill the person that no longer loves you."
In defendant's favor, the court found mitigating factor seven, lack of prior criminal history, N.J.S.A. 2C:44-1(b)(7). The court rejected defendant's argument that mitigating factors three, four, and five applied,*fn1 finding nonsensical the notion that defendant acted under strong provocation or that there were substantial grounds tending to excuse his conduct. The court also rejected defendant's assertion of mitigating factors eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur), and nine, N.J.S.A. 2C:44-1(b)(9) (the character and attitude of the defendant indicate that he is unlikely to commit another offense).
The court then weighed the aggravating and mitigating factors and concluded that the aggravating factors outweighed the mitigating factors. The court sentenced defendant to a term of fifty years with an eighty-five percent period of parole ineligibility pursuant to NERA, a term of eighteen months on the fourth degree tampering with physical evidence, and a term of five years ...