Opinion
DOCKET NO. A-4385-10T2
04-17-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GABRIEL ROMERO SANCHEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-2250.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant Gabriel Romero Sanchez guilty of first-degree murder, N.J.S.A. 2C:11-3a(1)-(2), two counts of felony murder (one in the course of a burglary and one in the course of armed robbery), N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4d; and fourth-degree possession of a weapon under circumstances manifestly inappropriate for its use, N.J.S.A. 2C:39-5d. The judge sentenced defendant to a term of life imprisonment for murder and a consecutive twenty-year term for first-degree robbery, both are subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. His other convictions were merged.
I
The victim of defendant's crimes was Angelina Costa. At the time of her death, Costa was eighty-one years old and living alone in her home in Garfield. Shortly after noon on July 8, 2007, Costa's son David found her lying on her kitchen floor, face down with blood under her head.
The medical examiner arrived at the scene at about 5:40 p.m. and estimated that Costa died between eight and ten hours earlier. After conducting an autopsy, she concluded that Costa's death was caused by multiple blunt and sharp force injuries to her head, face, neck, torso and extremities. Her injuries included five fractured ribs, torn lips, chipped teeth and fingernails, multiple bruises, and multiple cuts, which were located on the forehead, bridge of the nose, scalp, ear and fingers. In her opinion, the injuries to Costa's hands and arms were consistent with defensive wounds and the cuts, one of which was deep enough to cut bone, could have been caused by pieces of the broken dish found in the house.
Defendant was Costa's neighbor. He, his daughter, son-in-law and grandchild were living in a house in front of Costa's, on the same property.
The State's theory of the case was that defendant entered Costa's home through a basement window with the purpose of committing a theft, but when Costa awoke he struggled with and beat her using pieces of a broken dish and a kitchen chair. It was supported with photographs of the house taken before and after the incident, a video-recorded statement defendant gave the police and physical evidence, which included DNA evidence.
The defense was that defendant lacked the capacity to act knowingly or purposefully. It was supported by the accounts of his drinking defendant gave to the police and at trial and his trial testimony about falling off his bicycle on the way home after drinking, loosing consciousness and, upon regaining it, finding himself in Costa's home with her body.
David went to his mother's home on July 7 to check on her because she was not answering the phone. Although she was not there, everything seemed in order and he assumed she had gone out for the day. At about 8:30 p.m. that evening, David spoke to his mother by telephone and arranged to pick her up the next day. That is why he was at her house when he found her body on July 8. When he arrived, he saw that the glass in the storm door was broken and scattered about. Responding to questions from the prosecutor, David described, with evident emotion, his reaction upon finding his mother and how he was acting when he asked a neighbor to call the police because he could not get a dial tone on his mother's phone. He identified pictures of the interior and exterior of her house taken prior to the incident.
Police officers who came to the crime scene described what they observed and the evidence they collected. In the kitchen, there were pieces of a broken dish on the floor and in the sink, some of which appeared to have blood on them. There was water in the sink that was pinkish. The table was pushed against the wall, and the chairs were scattered and one had a cushion that appeared to be soaked with blood. The base of the telephone was off the wall and its receiver was on the floor; there were splatters of what appeared to be blood on the walls, refrigerator, floor and placemats.
In the family/living room, the glass top of a coffee table was pushed outside the frame, and there were red marks on the wall above the couch. There was bedding on the couch, and its back cushions were piled on a love seat. But the beds in the house had not been slept in. David explained that his mother regularly slept on the couch and generally retired at about 10:00 p.m.
There were also red marks that looked like blood on the bathroom door. The wastebasket in that bathroom contained a paper towel that had red stains.
Additional evidence was found in the basement. There were four blood smears in different locations on the wall adjacent to the steps leading from the kitchen to the basement, which is where a sample that contained a mixture of Costa's and defendant's DNA was obtained.
There was dirt on the basement floor beneath one of the windows, and outside, beneath that window, there was a bed of pink and yellow flowers, some of which appeared to be trampled. The screen for that window, which was bent and had "pry marks" on it, was propped against it from the outside but not fastened to the frame. In between that screen and the window, there was a yellow flower. David testified about his mother's pride in her flowers and the attention she devoted to them.
The police encountered defendant in the course of an effort, undertaken on July 8, to gather any information that the neighbors could provide. Two officers went to defendant's house, and as they approached saw red stains on the cement and the bottom sill of the door frame. A woman invited them in and took them to the kitchen, where they saw what appeared to be bloodstains behind the refrigerator. They spoke to defendant's son-in-law and daughter and later to defendant, who was sleeping in a room adjacent to the kitchen. The officers asked them to come to police headquarters, and they agreed.
Defendant's interview at police headquarters commenced at 5:04 p.m. and was terminated at about 1:30 a.m. The interview was video-recorded and that recording displays the time.
Defendant's motion to suppress his statement was denied by a judge who viewed the entire recording. Defendant does not challenge that ruling on appeal. The judge's findings are memorialized in a written opinion and order of June 22, 2010.
Summarizing, the judge found that defendant was interviewed for about an hour and fifteen minutes before the police considered him a suspect and gave him the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and determined that that the police did not violate Miranda or State v. O'Neill, 193 N.J. 148 (2007), by questioning defendant before advising him of his rights, because he was not in custody prior to that point, and concluded that defendant knowingly and voluntarily waived his rights.
During that interview, defendant said that on July 7 he worked for a landscaping firm until 1:00 p.m., went to an English language class and then drank with friends until late at night. He gave various and differing descriptions of the quantity of beer they consumed and explanations for the cut on his hand. According to defendant, he rode his bicycle home. At one point he estimated it was about 1:00 a.m. when he returned home and at another point said it was about 2:00 a.m.
Defendant first spoke about his entry into Costa's home and what happened in response to an appeal by an officer, who said:
Now is the time to say what happened. You know, think about it. Okay? Look at me here, okay. Now is your chance to say what happened, okay? The woman has the right to die with peace [sic], okay? We all, you, me, he[r], your mom, your dad, have the right to die with peace, okay?Defendant responded, "Yes." The detective followed up, "We're going to be sure here that she [unintelligible] peace, okay? Don't let her spirit stay here, okay?" After more words of encouragement, defendant said, "Yes, surely I'll talk."
During the remainder of his statement, defendant said he entered the house through the basement window at about 2:00 a.m. because he needed money. After entering, he went upstairs. The woman was laying in a chair in a room like a family room sleeping, but she woke up — he thought she heard him when he was coming up the stairs. He said, "I asked her for the money, to give me the money and she got spooked, well." He also said he asked her where she had the money.
At one point he agreed the window had flowers underneath it and at another point said he did not recall the flowers.
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When Costa screamed, he covered her mouth and hit her with his hand, causing her to fall to the floor. He then struck her with his fists while she was on the floor. He recalled Costa tilting the glass top of the coffee table and throwing something that broke the glass in the front door, which she did to make noise. When asked if he hit her so that she could not say who he was, defendant said yes.
Defendant also described what happened in the kitchen. They went there at a point when Costa was not screaming and wanted water because she "was in fear." In the kitchen, they talked. She was "telling [him] not to do something bad." When she picked up the telephone, he grabbed her arm and took it from her. He hit her with a kitchen chair when she tried to get out the kitchen door and while she was on the kitchen floor.
According to defendant, she tried to defend herself and, because he was drunk, she was "winning." The table in the kitchen "went to the side" while they were struggling, and she knocked him to the floor, causing him to cut his hand on broken glass she had broken which was in the kitchen sink and on the floor. At another point, however, defendant said he cut his hand while hitting the lady with a plate that was broken.
By defendant's estimate, he was in Costa's house for two or three hours. When he left, she was on the floor in the kitchen, and he did not know if she was dead or had fainted. He did not try to help her or tell anyone about it, but he cleaned the blood from his hand with a roll of paper towels that was in her house. He exited through the basement door or window and thought he got home at about 5:00 a.m., before the sun was rising. At home, he washed his bloody socks in the bathroom.
Defendant told the officers where in his bedroom they would find the shirt he was wearing. He also told them there might be blood on his boots.
During a search of defendant's home conducted pursuant to a warrant, officers found, on a shelf above the kitchen sink, a wash cloth soaking in a cup filled with bleach. The cup was stained red. They retrieved blood-stained clothing from his bedroom.
Numerous items and samples of suspected blood were obtained from Costa's and defendant's respective homes. The samples were tested and matched against DNA collected from defendant and blood drawn from Costa's body by the medical examiner. Costa's DNA was found on the shirt taken from defendant's home, and, as previously noted, a sample taken from the wall adjacent to the steps leading from the kitchen to the basement includes DNA from Costa and defendant.
At trial, defendant provided additional information about his drinking and inebriation and claimed that he fell from his bicycle several times while riding home, which left him unconscious. He testified that the next thing he remembered after falling was regaining consciousness and seeing Costa. At first he thought he might be responsible, but then realized he could not have done such a thing and left.
Defendant asserted that the video-recording of his interview had been altered. He had said things that were not on the tape. He also testified that during his bathroom breaks, the officers told him what to say and threatened to hurt his daughter if he did not comply.
There was no evidence that anything was missing from Costa's home or person.
Defendant raises five issues on appeal:
POINT I
REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED MR. SANCHEZ HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10. (Partially Raised Below).
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE, STRUCTURAL ERROR IN FAILING TO CHARGE THAT INTOXICATION WAS NOT A DEFENSE TO VARIOUS MANSLAUGHTER CHARGES AND BY EMPLOYING AN OUTDATED CHARGE ON MANSLAUGHTER. (Not Raised Below).
POINT III
AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. SANCHEZ A FAIR TRIAL. (Not Raised Below).
POINT V
MR. SANCHEZ'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND IS NOT IN ACCORD WITH THE SENTENCING GUIDELINES FOR THE STATE OF NEW JERSEY.
A. Given The Draconian Impact Of NERA, The Sentence As Presently Constituted Is Excessive.
B. The Sentencing Court Violated The Principles Of State V. Yarbough in Sentencing Mr. Sanchez to Consecutive Terms.
C. The Sentencing Court Improperly Found And Weighed Aggravating Factors.
D. The Sentencing Court Failed To Find Mitigating Factors Militating In Favor Of A Lesser Sentence.
II
A
"Correct charges are essential for a fair trial." State v. Martin, 119 N.J. 2, 15 (1990). But the claims of instructional error raised in Points II and III of defendant's brief do not warrant reversal of his convictions.
We begin by noting that defense counsel withdrew the argument based on the judge's failure to explain the relationship between intoxication and aggravated and reckless manslaughter by filing a letter "addendum to" the initial brief. In it, counsel explains that the withdrawal was prompted by his review of the State's brief. Accordingly, we do not address that claim.
The second claim raised in Point II — the objection to the instruction on aggravated manslaughter — has not been withdrawn, but for reasons set forth below, it does not warrant extensive discussion. R. 2:11-3(e)(2). Defendant argues that the judge gave a jury instruction on this crime as it was defined prior to 1981, without any reference to recklessness. He contends that the judge said, "criminal homicide constitutes aggravated manslaughter when the actor other than purposely or knowingly causes death under circumstances manifesting extreme indifference to human life." The instruction the trial court delivered does not include that statement.
In fact, the judge directed the jury that a person is guilty of aggravated manslaughter when "he recklessly causes the death of another person under circumstances manifesting extreme indifference to human life," which is how the Code now defines the crime. See N.J.S.A. 2C:11-4a(1). Contrary to defendant's assertions, the charge places "emphasis on recklessness." Indeed, the charge delivered properly defined "recklessness," "extreme indifference" and the critical difference in the degree of risk of death that distinguishes serious bodily injury murder, aggravated manslaughter and manslaughter. See State v. Wilder, 193 N.J. 398, 409 (2008); State v. Jenkins, 178 N.J. 347, 363 (2004).
In Point III defendant asserts, correctly, that the judge failed to include an instruction on the elements of attempted theft in the charge on first-degree robbery, but he did not request or object to the omission of that instruction at trial. Robbery requires proof that the defendant caused bodily injury or threatened specified harm "in the course of committing a theft." N.J.S.A. 2C:15-1a(1)-(3) (emphasis added). An act is "deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit a theft . . . ." N.J.S.A. 2C:15-1a.
Where there is no evidence that the defendant took any object of value from a victim the defendant has injured or threatened, an instruction on attempted theft is required. State v. Gonzalez, 318 N.J. Super. 527, 532-37 (App. Div.), certif. denied, 161 N.J. 148 (1999). In Gonzalez, we explained the need for an instruction on attempted theft in this circumstance and reversed a robbery conviction because the judge failed to include an instruction on attempted theft. Ibid.
Generally, an omission of an instruction on an essential element of the crime is deemed plain error — reversible whether or not there was an objection. State v. Jordan, 147 N.J. 409, 422-23 (1997); State v. Vick, 117 N.J. 288, 291 (1989). With respect to jury instructions, 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). In determining whether the omission had that capacity, the instruction is read as a whole. State v. Torres, 183 N.J. 554, 564 (2005).
This court, however, has upheld a conviction for robbery in a case where there was no completed theft and no instruction on attempted theft. In State v. Smith, 322 N.J. Super. 385, 398-400 (App. Div.), certif. denied, 162 N.J. 489 (1999), we considered and agreed with Gonzalez but found the error harmless. We primarily relied on the fact that the jury was given an instruction on an attempt to commit another crime. Id. at 399-400. We also considered the fact that "the defendant testified that he helped plan the robbery and assisted in carrying it out" and that there was "overwhelming evidence of defendant's guilt." Id. at 400. For those reasons, we determined that there was "no doubt that the failure to define attempt [to commit theft] in the robbery charge did not prejudice defendant's rights." Ibid.; see also State v. Belliard, 415 N.J. Super. 51, 71-74 (App. Div. 2010) (finding the omission of a charge on attempted robbery harmless error where defendant was charged as an accomplice to robbery and had without question taken a substantial step toward the commission of that crime by pushing the victim down), certif. denied, 205 N.J. 81 (2011).
In this case, the jury was given an instruction that included the essential components of attempted theft when the court charged the jury on burglary. Those elements are included in burglary, and this jury found defendant guilty of that crime.
The essential elements of attempt are found in N.J.S.A. 2C:5-1a. It defines attempt as follows:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:N.J.S.A. 2C:5-1b provides that "[c]onduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose."
. . . .
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
In order to convict defendant of attempted theft the jurors would have to find that defendant was "acting with the kind of culpability otherwise required for commission of" theft. See N.J.S.A. 2C:5-1a. The robbery charge the jurors were given in this case included an instruction on theft, which requires proof of intent to deprive the victim of movable property. N.J.S.A. 2C:20-3a. Thus, in finding defendant guilty of robbery they determined that he had the intent to deprive Costa of her property.
The elements of attempted theft not included in the robbery charge were: 1) whether defendant "purposely" did something "planned to culminate in his commission of" theft, N.J.S.A. 2C:5-1a(3); and, 2) whether what defendant did amounted to a "substantial step" toward commission of theft, ibid.
In this case, however, defendant was also charged with burglary. That crime requires proof that the defendant acting "with purpose to commit an offense therein . . . enter[ed] a . . . structure" that was not "open to the public" without license or privilege to enter. N.J.S.A. 2C:18-2a(1). In charging this jury on burglary, the judge directed that the State was asserting that the offense "defendant intended to commit is theft." On that instruction, these jurors found defendant guilty of burglary. In short, the jurors found that defendant had the purpose to commit theft when he entered Costa's home and that he took a step toward the goal by entering her house with the intent to commit theft.
Mindful that a defendant is entitled to have the jurors consider the evidence on each charge independently, State v. Ragland, 105 N.J. 189, 214-15 (1986), the question here is whether the omission of the instruction on attempted theft from the charge on robbery prejudicially affected defendant's substantial rights. Because defendant's conviction for burglary demonstrates that the jurors found the essential elements of attempted theft, he was not prejudiced by the omission of a charge on attempted theft that he did not request. Thus, there is no basis for reaching a conclusion on harmless error that differs from those reached in Smith and Belliard. Recognizing this error implicates defendant's right to have the jury find each element of the crime, State v. Grenci, 197 N.J. 604, 622 (2009), it was, beyond a reasonable doubt, harmless. State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)).
B
Defendant also contends that repeated instances of prosecutorial misconduct require reversal of his convictions. His objections are based on testimony the prosecutor elicited from David Costa and on the prosecutor's closing argument.
"Prosecutorial misconduct is a basis for reversal of a criminal conviction [only] if the conduct was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002); see also State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In reviewing claims of prosecutorial impropriety or excess, courts do not ignore the fact that testimony and argument now deemed objectionable passed without objection at the time; it suggests the argument or evidence was not viewed as prejudicial in the context of the trial. See State v. Smith 212 N.J. 365, 407 (2012) (summation), cert. denied, 568 U.S. ___ (2013); State v. Rose, 206 N.J. 141, 157-58 (2011) (relevant, but prejudicial evidence).
Defendant's first objection is to the testimony of Costa's son David. He claims the testimony focused on Costa's character and appealed to the jurors' emotions. Contrary to defendant's claim, David's testimony about his mother's habits and his visit to her home the day before her death was relevant.
David's visit to Costa's home on July 7 provided the foundation necessary for him to testify that photographs of her home taken before July 7 accurately depicted the condition of her house before she was attacked. His testimony about speaking to Costa at 8:30 p.m. on July 7 and finding her dead at noon on July 8 was relevant to establish the hours during which the homicide could have been committed.
David's testimony about his mother's gardening tended to provide a basis for an inference that the trampled flowers beneath the basement window were significant. And his testimony that Costa regularly slept on the couch in the living room, rather than a bedroom, helped to explain the crime scene — a couch with bedding and beds that were made.
Admittedly, some of David's testimony was more extensive than necessary to make the foregoing points. Nevertheless, the testimony was admitted without objection for good reason — its probative value outweighed the potential prejudice. N.J.R.E. 403.
We agree with defendant that the prosecutor impermissibly played to human emotions when he asked David whether his phone call to his mother on July 7 was the last time he heard her voice and when he questioned David to elicit emotional testimony about his reactions upon finding his mother's body. There were objections to those lines of direct examination, and the trial court did not limit them or give a curative instruction at the time. The clearly objectionable testimony was brief, however. And in light of the overwhelming evidence of defendant's guilt, we conclude that its admission was not capable of depriving the defendant of a fair trial by leading the jury to reach a verdict based on sympathy and passion rather than evidence. Accordingly, reversal of defendant's convictions is not warranted on this ground.
Defendant's objections to the State's summation do not change our view of the prosecutor's conduct. "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Within the boundary of the evidence, prosecutors may "sum up the State's case graphically and forcefully." State v. Johnson, 31 N.J. 489, 510 (1960). Courts "recognize[] that criminal trials provoke strong feelings and that 'rhetorical excesses . . . invariably attend litigation.'" Smith, supra, 212 N.J. at 409 (quoting State v. Williams, 113 N.J. 393, 456 (1988)).
True, "evidence that is admissible for the purpose of proving a material fact is not a tool of the prosecutor, to be employed as a means to bring irrelevant and prejudicial facts and irrelevant conclusions to the attention of the jury." Williams, supra, 113 N.J. at 451. As defendant argues, when the victim's character is irrelevant to defendant's guilt, the prosecutor may not comment on it to inflame the jurors by stressing the victim's virtue. Id. at 451-52; State v. Lockett, 249 N.J. Super. 428, 435-36 (App. Div.), certif. denied, 127 N.J. 553 (1991).
Excess does not always justify reversal of a jury's verdict, however. Smith, supra, 212 N.J. at 409. As previously noted, the absence of an objection indicates that defense counsel "perceived no prejudice." Id. at 407. Moreover, courts read the several phrases uttered by the prosecutor in the context of the State's argument and the State's need to respond to defense counsel's closing argument. Id. at 403-04.
Defendant argues that in his summation the prosecutor "began the emotional goading of the jury [by] openly calling for the jury to punish [defendant] because he left, he told no one, '[a]nd she dies.'" No appeal for punishment is suggested by the context of that statement, which the prosecutor made in summarizing the version of the events that defendant gave the police, which included his admissions that he left Costa not knowing whether she was dead or fainted and told no one. This was argument based on the evidence, and any implied appeal for retribution was too veiled to amount to an egregious conduct capable of distracting the jurors from an impartial consideration of the evidence.
Relying on this court's decision in State v. Jang, 359 N.J. Super. 85, 94-95 (App. Div.), certif. denied, 177 N.J. 492 (2003), defendant argues that the State "repeatedly heroized [sic] the victim." He points to the prosecutor's assertion that Costa "tried every way possible to avoid what was probably the inevitable." Unlike the comment in Jang, this statement was supported by the record — specifically, defendant's description of Costa telling him not to do anything bad, her efforts to make a phone call and leave through the kitchen door, the struggle with him that she was winning, and his admission that he struck Costa repeatedly because she had seen him. Cf. id. at 95 (where the prosecutor stated that "the victim sacrificed her life to save her family" and "referred to this act as her 'last act of heroism'" — statements that "were inappropriate and not supported by the record").
In this case, the argument is more comment on Costa's conduct than it is on her heroic character. More important, Costa's various efforts to avoid injury were relevant to defendant's state of mind, circumstances manifesting extreme indifference and the manner in which Costa's injuries were sustained. Grounded as it was on defendant's description of the events, it cannot be viewed as an impermissible distraction injecting extraneous considerations.
Defendant also objects to the prosecutor's statement that Costa begged defendant not to harm her. In context, the statement is not an appeal to sympathy. In making it the prosecutor referred to and repeated defendant's statement about Costa telling him not to do something bad coupled with defendant's admitted concern about Costa's ability to identify him. This supported an inference that defendant formed a purpose to kill and acted with the motive of avoiding identification.
Defendant further asserts that the prosecutor "doggedly repeated the [officer's] statement to [defendant] to '[g]ive the family peace. Don't let her die like that.'" The prosecutor, however, was responding to defense counsel's summation. Defense counsel had urged the jurors to consider the reliability of defendant's videotaped statement in light of duration of the interview and the psychological pressure employed. In that context, the prosecutor argued: "In a completely transparent investigation[,] you saw the interview. You saw what [the officer] said and you saw how [defendant] reacted, how he sat. And in the beginning . . . you saw him looking down and you saw it coming down on him." At that point the prosecutor repeated what the officer said about not letting Costa die like that and added: "And slowly it came out. And that which came out [was] an awful, awful story. And when you look at how she died you see nothing but purposeful and knowing actions."
Although defendant does not refer us to a second passage in which the prosecutor reiterated what the officer said to defendant, it warrants discussion. The prosecutor concluded his summation by saying, "Don't let her die like that." That statement without question was an impermissible appeal to take action. Defendant also points to an impermissible appeal to emotion — the prosecutor's urging the jurors to "[i]magine what that must have been like sleeping, hearing something coming up the stairs." These portions of the argument, improper as they clearly were, both passed without objection. While these appeals exceeded the bounds of permissible advocacy, those statements were brief deviations from the theme and tenor of the State's closing argument, which generally focused on the evidence and reasonable inferences relevant to defendant's state of mind, which was hotly disputed. So viewed, the improper statements are not sufficiently egregious to warrant reversal.
C
Defendant also claims that the errors he has raised on appeal, when viewed in the aggregate, warrant reversal. That argument has insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
D
Having addressed and rejected the claims related to defendant's convictions, we turn to consider the sentence.
The arguments defendant offers to establish that his sentence is excessive also lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
There are, however, sentencing errors that require a remand. As defendant argues and the State properly concedes, the judge did not articulate findings and reasons for imposing consecutive sentences for murder and robbery. In conformity with State v. Miller, 205 N.J. 109, 129-30 (2011), we remand and direct the judge to set forth the findings and reasons for imposing consecutive sentences. On remand, the judge should also consider the Supreme Court's recent decision on the impact of consecutive sentences on mandatory periods of parole supervision required by NERA. State v. Friedman, 209 N.J. 102, 119-20 (2012).
Finally, as the State contends, the judge erred in merging defendant's burglary conviction with his conviction for felony murder, which the judge then merged with the conviction for murder. See State v. Brown, 138 N.J. 481, 560-61 (1994). That error should be corrected on remand.
The convictions are affirmed and the matter is remanded for resentencing, reconsideration of consecutive sentences and correction of the judgment as required by this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION