March 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELA D. PIZZARELLI, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012
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 Antoine] knew where my mother lived.*fn3
They knew I had children." She asserted that nothing in the behavior of Andre and Antoine prior to the night in question gave her any reason to suspect them to be capable of such violence. When asked on direct examination if she willingly played any role in "help[ing] or assist[ing] them" in robbing and murdering Saahron, defendant answered "no." She maintained that "from the time that those guns were drawn behind [her] back" and she was "pushed" into Saahron's apartment, there was nothing she could have done to prevent the murder of Saahron. Her only option was to "try to cooperate the best that [she] could" because she didn't want herself or anyone else "to get hurt."
After deliberating for more than eight hours over two days, the jury returned a verdict, finding defendant guilty on all counts with the exception of count four. On count four, the jury acquitted her of murder and found her guilty of the lesser included offense of aggravated manslaughter.
On appeal, defendant raises the following claims:
I. THE TRIAL JUDGE ERRED IN CHARGING MURDER TO THE JURY IN A SEQUENTIAL MANNER, RESULTING IN A SKEWED VERDICT, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
II. THE JURY INSTRUCTION ON DURESS DID NOT PROPERLY EXPLAIN THE BURDEN OF PROOF, AND THE INSTRUCTIONS, WHEN VIEWED AS A WHOLE, WERE, AT BEST, CONTRADICTORY ON THE STATE'S DUTY TO PROVE THE ABSENCE OF DURESS BEFORE A CONVICTION COULD BE RETURNED ON ANY COUNT. (Not Raised Below).
III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In Point I, defendant argues that the trial judge erred in the sequencing of his jury instructions on the charges of murder, first-degree aggravated manslaughter and second-degree reckless manslaughter. In particular, she maintains that by starting with an instruction on the elements of murder, followed by aggravated manslaughter, followed by reckless manslaughter, the judge made it "impossible for jurors to reach a manslaughter verdict if they agree[d] that . . . defendant committed a knowing and purposeful murder, but was subject to duress." She asserts that "[a]t no time did the judge mention the duress defense or how it fit into the analysis the jurors were about to begin," noting that not until the very end of his jury instructions did the judge define duress, but by then, according to defendant, the definition was "completely out of context." Defendant contends that the sequential nature of the jury charge, and the judge's failure to incorporate his instructions on the duress defense into the substantive instructions on murder, aggravated manslaughter and reckless manslaughter, resulted in "a skewed verdict" that denied her a fair trial.
The record establishes that defendant failed to object to the jury instructions at trial, even though she was afforded two opportunities to do so, once during the charge conference and a second time at the conclusion of the judge's jury charge when he asked the parties if they had an objection to the charge as given. On both occasions, defendant interposed no objection. Because defendant failed to object to the jury instructions, the scope of our review is narrowed to plain error, and we will not reverse on that ground unless the asserted error was clearly capable of producing an unjust result. State v. Vallejo, 198 N.J. 122, 140 (2009). In the context of a jury charge, "plain error" is "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Wakefield, 190 N.J. 397, 473 (2007) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)), cert. denied, 522 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Defendant argues that the judge should have sequenced his instructions by beginning with reckless manslaughter, proceeding to aggravated manslaughter and ending with murder. She argues that the jury instruction and the verdict sheet should have been presented in the same sequence that a verdict sheet on passion/provocation manslaughter is structured, namely:
On the charge of Murder, we find the defendant:
1a. Not Guilty of Murder 1b. Guilty of Passion/Provocation Manslaughter (or Duress Manslaughter) 1c. Guilty of Murder.
In support of that argument, defendant relies on State v. Coyle, 119 N.J. 194 (1990). In Coyle, the Court held it was reversible error to charge a jury that if it found beyond a reasonable doubt that a killing was purposeful it must return a verdict of murder, without also instructing the jury that in order to return a verdict of murder, the jury was required to find the State had disproved beyond a reasonable doubt that the murder was committed in the heat of passion. Id. at 221-23. Stated differently, where evidence of passion/provocation exists, the jury can return a verdict of murder only if it finds the State disproved passion/provocation beyond a reasonable doubt. Id. at 221. As structured, the instruction in Coyle "had the potential to foreclose jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter." Id. at 222. As a result, the jury could have convicted the defendant of murder "simply by finding that 'it [was] his conscious object to cause death or serious bodily injury,' without having considered the possibility of a manslaughter verdict." Id. at 222-23 (alteration in original). The Court reasoned that such a verdict was faulty because in order to return a verdict of murder -- where evidence of passion/provocation exists -- a jury must find the State proved beyond a reasonable doubt purposeful killing and the absence of passion. Id. at 223.
Nonetheless, in concluding that the sequence of the judge's instructions denied the defendant a fair trial, the Court was careful to observe there is "nothing inherently wrong with a sequential charge" in which a jury is "told not to consider the lesser-included offenses unless [the jurors] first find the defendant not guilty of the greater offense." Ibid. It was only in the context of passion/provocation that the Court held that the more typical sequential instruction, which begins with the greater offense, is not appropriate. Id. at 223-24.
After careful consideration of defendant's arguments, we conclude that her reliance on Coyle is misplaced. First and foremost, there is no such crime as "duress manslaughter," despite defendant's references to such an offense, whereas there is a crime of passion/provocation manslaughter. See N.J.S.A. 2C:11-4(b)(2). Passion/provocation manslaughter is a mitigated form of murder. Ibid. A jury should consider both passion/provocation manslaughter and murder together because both require a finding of purposeful killing. Coyle, supra, 119 N.J. at 222-23. In contrast, a jury considers the defense of duress only after the jury has determined that the State has proven the defendant's guilt on the charge of murder. See State v. Harmon, 104 N.J. 189, 206-07 (1986) (stating that justification defenses only become relevant "when the essential elements of a crime have otherwise been established").*fn4
For that reason, to suggest, as defendant does, that the jury verdict sheet should have included a choice of "guilty of duress manslaughter" is inaccurate. The jury must first determine whether the State proved beyond a reasonable doubt that defendant "purposely" or "knowingly" caused the death of another. N.J.S.A. 2C:11-3. Only then would the jury proceed to determine if the State disproved duress beyond a reasonable doubt. State v. B.H., 183 N.J. 171, 187-88 (2005); Harmon, supra, 104 N.J. at 206-07. The relationship of passion/provocation manslaughter to murder, and the relationship of the duress defense to murder, are entirely dissimilar.
Additionally, unlike the sequential jury instruction in Coyle, in which the jury was told that it could only consider passion/provocation if it found the State had proven all elements of the substantive offense beyond a reasonable doubt, Coyle, supra, 119 N.J. at 222, here the jury was given no such instruction. To the contrary, the judge's charge to the jury begins with the judge's instruction that defendant "contends she is not guilty because at the time of the offenses she acted under duress." For that reason, we conclude that the error that was fatal to the judge's instruction in Coyle is absent here. For all of these reasons, we reject defendant's claim that the sequence of the judge's instruction to the jury on the murder charge denied her a fair trial.
In Point II, defendant raises two claims. We address them separately.
A. Eroding the State's obligation to disprove the defense of duress
Defendant argues that the judge's instruction to the jury eroded the State's obligation to disprove all of the elements of the defense of duress beyond a reasonable doubt. The affirmative defense of duress is defined in N.J.S.A. 2C:2-9(a) as follows:
[I]t is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
The statute goes on to specify that the affirmative defense of duress is "unavailable if the actor recklessly placed himself in a situation in which it is probable that he would be subjected to duress." N.J.S.A. 2C:2-9(b). Further, "[i]n a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter." Ibid. Although a defendant initially must produce some evidence tending to establish the defense, the State must disprove the defense beyond a reasonable doubt. B.H., supra, 183 N.J. at 187-88. Stated differently, a defendant has no burden of proof in establishing the defense. Instead, the burden rests upon the State to disprove the defense beyond a reasonable doubt. While duress does not exculpate a defendant from a charge of murder, N.J.S.A. 2C:2-9(b), it is an absolute defense to all other crimes. B.H., supra, 183 N.J. at 186.
In support of her contention that the judge's instruction eroded the State's obligation to disprove the defense of duress beyond a reasonable doubt, defendant points to the following portion of the judge's instruction:
Before conduct which would otherwise be criminal can be excused on the ground that such conduct was the direct result of force or threats of force upon the defendant or another, the evidence must indicate that . . . there was use or threatened use of unlawful force . . . [a]nd, . . . [t]he force or threatened force would be of such a type that a person of reasonable firmness in a similar situation would have been unable to resist. [(Emphasis added).]
Defendant's challenge to the "the evidence must indicate" language is unavailing. The phrase is neutral language merely informing the jury of the requirement that there must be some evidence that the elements of duress existed. Id. at 187-88. See also Harmon, supra, 104 N.J. at 206-07 (observing that "[t]he justification of 'self defense,' like the justification of . . . 'duress,' N.J.S.A. 2C:2-9, is an 'affirmative defense' under the Code . . . upon which the defendant has the initial burden of producing evidence"). As a result, the language that defendant complains improperly shifts the burden of proof is instead a proper statement explaining that in order to raise the defense, a defendant must present facts that could warrant consideration of the defense of duress. Moreover, the language in question is taken directly from the Model Jury Charge. See Model Jury Charge (Criminal), "Duress" (1982). We reject defendant's contention that the jury instruction on duress improperly shifted the burden of proof.
B. Confining the jury's consideration of the duress defense to only the charge of murder
In Point II, defendant also asserts that the judge's instruction to the jurors could have mistakenly been interpreted as requiring them to confine their consideration of the affirmative defense of duress to only the charge of murder. Defendant observes that at no time during the judge's instructions to the jury on the substantive charges of murder, aggravated manslaughter and reckless manslaughter, did the judge mention the duress offense or explain how it applied to the analysis the jurors were about to begin. Instead, not until the end of his instructions to the jury, did the judge define duress, by which time, according to defendant, the instruction on duress was "completely out of context," with no analysis of how it applied to the substantive offenses.
Defendant also complains that because the jury instruction on duress concluded with the judge's comment about the murder count -- which we shall describe shortly -- the jury could have mistakenly concluded that the affirmative defense of duress was confined to the murder count. The offending comment was this:
Understand the following, however. In the prosecution of murder, purposeful or knowing murder, the defense of duress is only available to reduce the degree of the crime to manslaughter.
Defendant maintains that because the judge never expressly informed the jurors that the defense of duress was applicable to all counts of the indictment, the judge's reference to the murder count could have been interpreted by the jury as requiring them to confine their consideration of the duress defense to only the murder charge.
Defendant's argument incorrectly takes this single remark out of context. In our review of a jury charge, the portions of the charge claimed to be erroneous cannot be analyzed in isolation. Instead, the charge must be "read as a whole" to determine its overall effect. State v. Torres, 183 N.J. 554, 564 (2005). See State v. Pelham, 176 N.J. 448, 456 n.2, cert. denied, 540 U.S. 909, 124 S. Ct. 284, 157 L. Ed. 2d 198 (2003). When the judge's entire instruction on duress is read as a whole, it becomes readily apparent that the judge did not, as defendant contends, suggest to the jury that the defense of duress was confined to the charge of murder. At the beginning of his instruction on duress, the judge informed the jury that the defense was applicable to all of the counts. The judge stated:
I remind you that the defendant has a constitutional right not to testify and no burden to prove her innocence in this case. However, in defense of these charges, the defendant . . . contends she is not guilty because at the time of the offenses she acted under duress. In other words, she was coerced to commit the offense due to the use of or threatened use of unlawful force against her or another person. [(Emphasis added).]
The judge then proceeded to instruct the jury on the elements of the defense. He explained:
Before conduct which would otherwise be criminal can be excused on the ground that such conduct was a direct result of force or threats of force upon the defendant or another, the evidence must indicate that the following conditions existed at the time.
One: That there was use or threatened use of unlawful force against the person of the defendant or another.
And, two: The force or threatened force would of such a type that a person of reasonable firmness in a similar situation would have been unable to resist. This defense of duress is unavailable to the defendant if you find that she recklessly placed herself in a situation in which it was probable that she would be subjected to duress.
A person acts recklessly with respect to a material element of an offense when she consciously disregards a substantial and unjustifiable risk that the material element exists or will result from her conduct. The risk must be of such a nature and degree that considering the nature and purpose of the actor's conduct and the circumstances known to her, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. . . .
In determining whether the defense of duress has been established, you should consider the following.
One: The factor of immediacy. That is the force or threats posed a danger of present, imminent and impending harm to the defendant or to another, as well as the gravity of the harm threatened or threatened harm.
Two: The seriousness of the crime committed.
Three: The identity of the person endangered. In other words was it the defendant or another person who was allegedly endangered.
Four: The possibilities for escape or resistance and the opportunity for seeking official assistance, if realistic. . . .
Remember, . . . [t]he State has the burden to prove beyond a reasonable doubt each element of the offense as charged. The State also has the burden to disprove beyond a reasonable doubt the defense of duress.
The judge continued his instruction on duress, referring to the defense of duress in the context of "the offenses charged," again signifying that the defense of duress was applicable to all counts of the indictment, not simply murder. The judge stated:
If you find the State has proven beyond a reasonable doubt each element of the offenses charged and that the State has disproved beyond a reasonable doubt the defense of duress, you must find the defendant guilty. If, however, you determine that the State has failed to prove beyond a reasonable doubt one or more of the elements of the crimes charged, or has failed to disprove the defense of duress, you must find the defendant not guilty. [(Emphasis added).]
It was only after referring in the plural to "charges," "offenses" or "crimes" on four occasions, that the judge issued the instruction about which defendant complains:
Understand the following, however. In the prosecution of murder, purposeful or knowing murder, the defense of duress is only available to reduce the degree of the crime to manslaughter.
Viewing the jury charge as a whole, as we must, Torres, supra, 183 N.J. at 564, we are satisfied that defendant's argument lacks merit. Because of the judge's numerous references to "crimes" "offenses" and "charges," all of which are plural terms, the jury understood that the defense of duress was applicable to all counts of the indictment.
There is a second reason why we consider defendant's argument unpersuasive. The judge instructed the jury that if the State failed to prove one of the elements of the crimes charged beyond a reasonable doubt "or has failed to disprove the defense of duress," defendant must be found not guilty. Unquestionably, that instruction correctly signaled that the defense of duress, if established, was a complete defense resulting in an acquittal. The judge then proceeded to narrow that instruction, by informing the jury that, in contrast, for the murder count, a successful duress defense could only reduce the degree of the crime to manslaughter.
If, as defendant contends, the last paragraph of the judge's instruction could have been interpreted by the jury as confining the duress defense to the charge of murder, then the remainder of the judge's instruction -- in which he told the jury that a successful defense of duress would result in an acquittal -- would become entirely superfluous and meaningless.
So viewed, the judge's cautionary note concerning the murder count at the very end of his instruction on duress could only have been interpreted by the jury as a command that the murder count must be treated differently in relation to the duress defense. The interpretation of the last paragraph that defendant urges upon us improperly views that portion of the jury charge in isolation, and distorts the meaning of the charge as a whole. For that reason, we reject defendant's contention that the jury instruction on duress improperly instructed the jury that the defense of duress was applicable only to the crime of murder.*fn5
In Point III, defendant contends that her sentence of forty-five years subject to NERA is excessive. In particular, she argues that: 1) the judge's finding of aggravating factor three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), was improper as she had only one prior adult conviction; and 2) the judge's finding of aggravating factor one, the crime was committed in an especially cruel manner, N.J.S.A. 2C:44-1(a)(1), constituted an impermissible double-counting of an element of the offense of felony murder. We reject both of these contentions.
To support his finding of aggravating factor three, the judge relied not only on defendant's prior April 27, 2001 conviction for conspiracy to commit robbery,*fn6 but also defendant's history of a parole violation. The judge correctly observed that while on parole on the charge of conspiracy to commit robbery, defendant absconded, and was ultimately apprehended in North Carolina, to which she had fled. The judge was entitled to consider the parole violation in connection with aggravating factor three, as the parole violation was evidence of defendant's unwillingness to conform her behavior to the requirements of the law, thereby creating a risk that defendant would commit another crime. The judge's finding of aggravating factor three was entirely appropriate.
When finding aggravating factor one, that the offense was committed in an especially cruel manner, the judge stated:
The victim in this case was hit in the face with a gun, according to the victim's brother, when no money was found in the safe. The victim and his brother were threatened with their lives before the victim was executed.
According to the victim's brother, during the course of the incident, . . . defendant talked . . . tough as nails, demanding that money be turned over, [stating] that she wouldn't hang around with any "broke niggers."
The record amply supports the judge's conclusion that defendant "orchestrat[ed] this armed robbery," which resulted in the victim's execution-style murder. Saahron Jones was repeatedly brutalized, and threatened with being shot, before defendant and her accomplices ultimately took his life. To compound Saahron's suffering and terror, defendant and her accomplices threatened to shoot Saahron's seventeen year-old brother Jaashawn. These terrifying events fully support the judge's finding that the offense was committed in an especially "cruel" manner, thereby justifying the application of aggravating factor one.
Ultimately, after weighing the four aggravating factors*fn7 against the lone mitigating factor, number eleven, that defendant's incarceration would impose an undue hardship on her children, N.J.S.A. 2C:44-1(b)(11), the judge imposed a forty-five year NERA sentence. That sentence does not shock the judicial conscience. See State v. Roth, 95 N.J. 334, 364-66 (1984). We reject defendant's claim that her sentence was excessive.