On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Baxter.
After a trial by jury, defendant Angela D. Pizzarelli appeals from her conviction on charges of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser included offense of murder (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). After appropriate merger, the judge sentenced defendant on count four to a forty-five year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). On count five, the judge imposed a five-year term of imprisonment, with two and one-half years to be served without parole ineligibility, concurrent with the sentence on count four.
We reject defendant's contention that the sequence of the judge's instructions to the jury on murder, aggravated manslaughter and reckless manslaughter denied her a fair trial, as we do not agree that defendant's defense of duress required the judge to commence his instructions with the charge of reckless manslaughter. We likewise reject defendant's claims that the judge's instructions minimized the State's obligation to disprove the defense of duress and could have been erroneously interpreted by the jury as confining the jury's consideration of the defense of duress to only the charge of murder. Finally, we reject defendant's claim that the sentence imposed was excessive. We affirm.
The State's proofs established that in the latter part of December 2005, defendant told co-defendants Antoine Dennis and Andre Dennis, who are brothers, that Saahron Jones, whom defendant had met at a bar in Elizabeth, kept $16,000 in cash at his apartment in Asbury Park.*fn1 Defendant, Andre and Antoine decided to drive from Jersey City, where they lived, to Asbury Park on the night of December 31, 2005 to rob Saahron.*fn2 In accordance with their plan, defendant knocked on the door of Saahron's apartment. When Saahron opened the door, the three pointed a gun at his head and forced their way into the apartment. After ordering Saahron to lie face down on the living room floor, the three bound his wrists with shoelaces.
At that point, Jaashawn Jones, Saahron's seventeen year-old brother, began knocking on the apartment door and yelling Saahron's name. Jaashawn had come to Saahron's apartment to pick up his gold chain, which he planned to wear that night for a New Year's Eve party. Jaashawn's cousin, Prince Young, who had driven Jaashawn to Saahron's apartment, waited outside in a parked car.
Hearing someone knocking on the door, defendant directed Andre to open it and pull Jaashawn inside. Andre complied, pointing a gun at Jaashawn's face as he pulled Jaashawn down to the floor. A few minutes later, either Andre or Antoine forcibly took from Jaashawn his gold chain and cufflinks. Because defendant did not want Jaashawn to be able to recognize her, defendant directed Andre to put a jacket over Jaashawn's head. Even though a jacket was covering his face, Jaashawn was able to see his brother lying face down on the floor with his arms tied behind him and a female standing "overtop of him." Jaashawn heard defendant angrily state that there was "$30,000 in this house somewhere." Jaashawn heard Saahron respond that the money was no longer in the apartment because he, Saahron, had lent it to a friend, who was subsequently robbed.
Andre found a safe in an upstairs bedroom. When the safe was opened, and no money was found inside, Antoine became angry and hit Saahron in the head with a gun. Moments later, Andre increased the volume on the television and handed defendant a pillow. It was then that Jaashawn heard a single gunshot.
Jaashawn waited until after he heard the three exit the building, and then hurried to his brother Saahron, who was bleeding from the head, lying face down and gagging. Because the three intruders had thrown both Jaashawn's and Saahron's cell phones into a fish tank in the apartment, Jaashawn was unable to call the police. He ran out of the apartment to Young's car, screaming "they killed my brother, drive." Upon arriving at his parents' home, Jaashawn called the police. The police and an EMT squad arrived quickly, but Saahron was already dead of a single gunshot wound to the back of his head.
The State also presented the testimony of Sheazel Collins, who was a friend of both defendant and Saahron. Collins had known defendant since 1998. According to Collins, defendant called Collins in mid-December 2005 to tell him that she was alone in Saahron's apartment and could see $16,000 in cash on top of Saahron's bureau. She asked Collins if "she could take it." After telling defendant "she better not touch nothing" in Saahron's apartment, Collins called Saahron to warn Saahron never to allow anyone in his apartment when he was not there, and never to leave money in his apartment "trying to impress a girl."
As soon as he heard that Saahron had been murdered, Collins called Saahron's family to notify them of his recent conversation with defendant about her desire to steal Saahron's money. Saahron's sister was able to find a photograph of defendant on the Internet. After observing the photograph, Jaashawn said, "that's her," and later selected a photograph of defendant from a photo array. When Jaashawn's cousin, Young, was shown a photo array, he selected the photograph of defendant as depicting the woman he saw leaving the building where Saahron lived, seconds before Jaashawn came running out yelling "they killed my brother."
The State also presented testimony establishing that shortly after Saahron's murder: the cufflinks taken from Jaashawn on the night of the murder were located in Antoine and Andre's Jersey City apartment; Andre was observed by police wearing Jaashawn's gold necklace; gunshot residue was detected on defendant's jacket; and Antoine's DNA was found on a mask and glove recovered from defendant's car. Forensic testing also established that the gun used to shoot Saahron was fired in "contact or near contact" with the pillow covering his head.
Defendant testified. Her account of the events of December 31, 2005 differed markedly from the State's proofs. She testified that she met Saahron Jones in 2005 when he frequented a bar where she worked. She explained that she met Antoine during the fall of 2005 and began a sexual relationship with him. On December 31, 2005, she called Antoine to discuss their plans for that evening. When he said he had no drugs, defendant told him she had a friend, Saahron Jones, who might be willing to help. She called Saahron, who, according to defendant, told her that he did not want to discuss the transaction over the phone, and instructed her to bring Andre and Antoine to his apartment. Defendant testified that neither Andre nor Antoine said anything during the drive from Jersey City to Saahron's apartment in Asbury Park that would indicate an intention to harm Saahron. Nonetheless, as soon as Saahron opened the door, "[Andre's and Antoine's] guns came out."
Defendant testified that as soon as she saw Andre and Antoine point guns at Saahron, she demanded to know what was happening. In response, they told her to "shut . . . up" and ordered Saahron to the ground. According to defendant, either Andre or Antoine said, "if everybody cooperates, nobody is gonna get hurt." They also warned her not to "try to play a hero."
According to defendant, as soon as Saahron lay down on the floor, "Andre was over him," and Antoine took a shoelace and "tied Saahron's hands behind his back." Defendant kept arguing with Antoine and Andre trying to persuade them not to hurt Saahron. In response, Andre told her to "shut the f-ck up."
Moments later, Saahron's brother Jaashawn knocked on the door. By that point, Antoine was no longer "the same person that [she had] come to know." She "saw something in his face that [she] [had] never seen before." Antoine proceeded to open the door, and he and Andre pulled Jaashawn into Saahron's apartment and "threw him directly on the floor." They immediately covered Jaashawn's face with a jacket.
According to defendant, Andre and Antoine became increasingly angry about their inability to find money or drugs, and threatened to kill Saahron if Saahron "didn't come up with something." Shortly afterward, Antoine said to Andre, "I think we've been here long enough, we need to get out of here." At that point, she and the two brothers started walking to the door. Antoine and Andre told Jaashawn not to "get up" until ten minutes had elapsed, threatening to shoot him if he stood up any sooner. Defendant then described the shooting of Saahron:
As I was opening the front door and we were leaving out, I did hear the TV volume raise up a little bit. And again, as Antoine was pushing me out of the door, there was a gunshot.
Defendant insisted that when she, Antoine and Andre left Saahron's apartment, she did not want to go with them, but felt she "didn't have a choice." She drove to Manhattan, where she dropped off Andre and Antoine at a party. She explained her state of mind:
I wanted to get them out of my car as soon as possible. I was doing whatever needs to be done to do that without anything else happening. . . . I was afraid. I thought that maybe that they would do something to me. I didn't know what was going to happen at that point in time.
These were not the same two people that I knew as Antoine and Andre.
Defendant explained that in the days after Saahron's murder, she was "afraid for [her]self and for [her] family. Both of them [Andre and ...