Opinion
DOCKET NO. A-3691-09T1
05-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.W., Defendant-Appellant.
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief). Jenny Hsu, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Hsu, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 07-02-0070.
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief).
Jenny Hsu, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Hsu, of counsel and on the brief). PER CURIAM
Defendant E.W. appeals from the judgment of conviction and sentence imposed following a jury trial at which she was found guilty of four counts of second-degree endangering the welfare of her children, N.J.S.A. 2C:24-4(a). The judge denied defendant's request to be sentenced as a third-degree offender, N.J.S.A. 2C:44-1(f)(2), and imposed four, concurrent eight-year terms of imprisonment, each with a four-year period of parole ineligibility.
We granted defendant's motion for bail pending appeal.
On appeal, defendant raises the following arguments:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm, but remand for purposes of reconsideration of the period of parole ineligibility imposed.
THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST FOR A MISTRIAL OR, IN THE ALTERNATIVE, A MORE THOROUGH VOIR DIRE PROCESS, ONCE A PSYCHIATRIC DEFENSE WAS INTERPOSED AT THE END OF THE STATE'S CASE U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, paras. 1, 9, 10
POINT II
IN HIS CHARGE TO THE JURY ON INSANITY, THE TRIAL JUDGE ERRED IN FAILING TO DISTINGUISH BETWEEN KNOWING AN ACT IS LEGALLY WRONG AND KNOWING IT IS MORALLY WRONG, DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, paras. 1, 9, 10 (Not Raised Below)
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE
I.
After the indictment was returned, defense counsel requested that defendant be examined to determine her competency to stand trial. Defendant was examined in September 2007 by Dr. Peter Paul, a forensic psychologist, who determined that she was competent to stand trial. The trial commenced with jury selection in October 2009.
The testimony revealed that in 2005, defendant lived in Brooklyn with her husband of twenty years, W.W., and their five children. That summer, defendant took the children and left home without telling her husband or advising where they were going. Defendant sought help from the Times Square Church in Manhattan, where she regularly attended religious services.
Defendant's brother described her as an intensely religious woman who belonged to a "very orthodox" religious organization known as "The Brethren." Defendant met with Gayle Paulsen, the director of the Single Mother's Ministry at the church, who helped her find temporary housing. Defendant told Paulsen that she could not return to her home because W.W. was "using alcohol." Paulsen arranged for defendant and the children to temporarily reside at a lakeside cabin in Hopatcong owned by fellow parishioners Bradley and Lisa Guice.
Paulsen drove defendant and the children to the cabin. Paulsen arranged for the family to use the cabin on a temporary basis, since the Guices had rented it for the summer and the cabin had to be vacant by May 1, 2006. While defendant lived at the cabin, the church paid the rent and utilities and provided money for clothing and food. Defendant would call Paulsen whenever her family needed more food or supplies, and other church members would also bring food to the family.
When Paulsen subsequently called defendant to remind her that she needed to find new living arrangements, defendant responded by leaving a voicemail on the church telephone stating, "God told her to stay." Paulsen tried to make alternate plans, but defendant called Paulsen a few days later and reiterated that she would not be leaving the cabin. The church continued to pay defendant's utility bills, but, in a letter dated May 12, 2006, Paulsen informed defendant the church would stop providing for her family's necessities and begin eviction proceedings.
During these months, the Guices lived in a house next door to the cabin. In mid-July, defendant called Mr. Guice because the water heater was broken. When he arrived to fix the appliance, Guice noticed that defendant appeared very thin. Defendant assured Guice that she and the children had adequate food. The next day, however, defendant called Guice and admitted to lying. Guice called Paulsen who asked him to purchase food for the family.
At the time, defendant's children were eighteen, thirteen, eleven, nine and eight years of age. Guice saw them for the first time when he delivered the food. They looked "extremely thin." Guice told defendant "[t]his is not God, you know, this is you, starving your kids."
On July 25, 2006, Nathan Bell, an investigator from the Division of Youth and Family Services (the Division or DYFS) went to the cabin to investigate allegations that defendant's children were not being fed. Defendant told Bell that her plan for getting food was to pray to God for direction. Bell observed that the children were very thin, lethargic, and had difficulty processing and responding to his inquiries. Bell effectuated an emergency removal of the children and brought them to Newton Memorial Hospital.
There, Dr. Mia Piggee examined the four youngest children and found the weight of each child measured in the third percentile, the lowest possible measure on the growth chart, and that they lacked any "subcutaneous fat" on their bodies. Piggee concluded that the children were suffering from cachexia and chronic malnutrition. Dr. Wendy Frieling, who examined the children two days after their removal, reached a similar diagnosis.
Cachexia is "[a] general weight loss and wasting occurring in the course of a chronic disease or emotional disturbance." Stedman's Medical Dictionary 257 (26th ed. 1995).
Defendant's brother and his wife were granted temporary physical custody of the children. At the end of August, another pediatrician, Dr. Elizabeth Hodgson, examined them and noted that each had gained substantial weight. Hodgson testified that the children still suffered various after-effects from the underlying chronic malnutrition as evidenced by their protuberant bellies, "refeeding gastritis," residual keratosis likely due to vitamin deficiencies, and a positive test result for tuberculosis.
Gastritis is defined as "[i]nflammation . . . of the stomach." Keratosis is "[a]ny lesion on the epidermis marked by the presence of circumscribed overgrowths of the horny layer." Stedman's Medical Dictionary, supra, at 707, 916.
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At trial, two of the children testified that defendant knew the church would not continue to send food unless the family left the cabin, but defendant nonetheless chose to stay. Defendant made no attempt to get food on her own. One of defendant's sons testified that the family went without food for ten days on one occasion. Defendant's oldest daughter testified that she wanted to leave the cabin and get food, but felt compelled to obey her mother, who forbade her to leave. Defendant told her children that they would wait for God to provide them with food.
After several days of testimony and as the State's case drew to completion, defense counsel advised the judge, "[M]y client has ceased to assist me with the trial of this case." Counsel's attempts to review the evidence with defendant and discuss the testimony were met with the same response from defendant, i.e., "God is my defense." Defense counsel asked the judge to "have [defendant] evaluated again for the purpose of determining whether she's competent to assist me at trial."
The judge asked defendant if she wanted "to respond" to her attorney's statements. Defendant stated:
I did not feel a need to continue to go over the documents that I have been going over for three years.The judge ordered the trial to continue, noting, "I don't believe what has been presented justifies the Court adjourning the trial to obtain another evaluation."
And the fact of the matter is, if God is my defense, [H]e will defend me. I don't have to have a defense, because the Prosecutor needs to prove beyond a reasonable doubt that I'm guilty. And God will defend me.
On the next trial day, defense counsel, who had been appointed by the Office of the Public Defender to represent defendant, appeared along with the Deputy Public Defender for the region. Defense counsel indicated that defendant no longer "wanted to proceed with me as her attorney." Noting the lack of "any application . . . with regard to these issues of breakdown of communications between attorney and defendant," the judge indicated that the trial would continue since the State had witnesses available to testify. The State rested after its final witnesses were produced.
Later that same day, the Deputy Regional Public Defender filed a formal motion to relieve defense counsel and have defendant psychologically evaluated. The judge denied the motion to relieve defense counsel but permitted a defense evaluation of defendant, further ordering that any report be served within three days, i.e., by Friday, December 11, 2009.
Defendant served the court and the prosecutor with the expert report of Dr. Joel E. Morgan, a clinical neuropsychologist. By the time the parties reconvened in court on Monday, December 14, without the jury, defendant had filed a "motion to determine fitness to proceed pursuant to N.J.S.A. 2C:4-6," and "a notice of defense of insanity and/or diminished capacity." The State arranged to have defendant evaluated by its expert on Tuesday, December 15.
Extended argument took place regarding the competency hearing and defendant's belated attempt to assert an insanity defense. A third defense counsel, who was permitted by the judge to participate in argument, contended that if the trial continued, the judge must further voir dire "each individual juror . . . [and] ask questions with regard to how they feel about an insanity defense." Defense counsel also sought a mistrial.
Ultimately, the judge continued the trial and conducted a competency hearing on January 6, 2010. After considering defendant's answers to questions he posed, as well as the testimony of Dr. Morgan, and the reports of Drs. Paul and Azariah Eshkenazi, the State's expert, the judge concluded defendant was competent to stand trial. The judge requested the prosecutor and defense counsel submit additional proposed voir dire questions and briefs regarding defendant's motion for a mistrial and assertion of an insanity/diminished capacity defense.
When the parties reconvened without the jury on January 12, defense counsel argued the case should be mistried due to "the failure of the opportunity to voir dire the jury." He submitted thirty additional jury questions. Defense counsel also asked for "additional challenges" based upon the answers to these questions.
The prosecutor objected to the mistrial motion, the request to pose additional voir dire questions, and the assertion of the insanity/diminished capacity defense out of time. The prosecutor specifically reviewed the questions asked of the jurors during the initial voir dire and argued "the questioning of this jury is sufficient." The judge agreed, concluding, "[W]e adequately addressed the issue in the voir dire inquiries that have been made. I do not see the need for further inquiry of the jury." However, the judge also permitted defendant to belatedly assert the defenses of insanity and diminished capacity based upon the findings of Dr. Morgan.
The trial continued the next day. The defense presented the testimony of Dr. Morgan and Dr. Frank Dyer, a psychologist, who had evaluated defendant during her pre-trial incarceration. Defendant's brother also testified. After the defense rested, the State called Drs. Paul and Eshkenazi as rebuttal witnesses before resting.
II.
Defendant contends the judge erred by denying her motion for a mistrial or, alternatively, for refusing to pose additional voir dire questions to the sitting jurors. We need not consider defendant's argument that a mistrial was necessary because we agree with the State that the original voir dire questions posed to the jury were adequate under the circumstances.
We begin by recognizing that "[v]oir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and its exercise of discretion will ordinarily not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (2000) (citation and internal quotation marks omitted). "The purpose of voir dire is to ensure an impartial jury by detecting jurors who cannot fairly decide a matter because of partiality or bias." State v. O'Brien, 377 N.J. Super. 389, 412 (App. Div. 2004) (citation and internal quotation marks omitted), aff'd in part, rev'd in part on other grounds, 183 N.J. 376 (2005). When the challenge is to the sufficiency of the voir dire, we have said:
[T]here is no particular litany required for the jury voir dire, and the court is not obligated to ask any particular question or indulge the defendant's requests absolutely. Appellate review is generally limited to determining whether the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury.See also State v. Winder, 200 N.J. 231, 252 (2009) ("[T]rial courts must be allotted reasonable latitude when conducting voir dire and, therefore, a reviewing court's examination should focus only on determining whether 'the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury.'") (quoting State v. Biegenwald, 106 N.J. 13, 29 (1987)).
[O'Brien, supra, 377 N.J. Super. at 412-13 (citations and quotation marks omitted).]
In State v. Moore, 122 N.J. 420, 453-54 (1991), a capital murder case, the Court stated "it is well established that many laypersons have a great deal of difficulty in understanding the insanity defense, and many people might not be able to consider it as a viable defense, particularly to such a heinous act as the killing of a wife and child." Therefore, "[a]lthough . . . the intent of the voir dire process is not to solicit jurors who favor one side and . . . would accept an insanity defense, it is equally true that the voir dire process should screen out prospective jurors who could not consider an insanity defense due to their prejudices or biases against it." Id. at 454. The Court appended to the opinion sample voir dire questions "for guidance to courts." Ibid.
In State v. Murray, 240 N.J. Super. 378, 391 (App. Div.), certif. denied, 122 N.J. 334 (1990), the "defendant submitted a list of proposed voir dire questions to the judge. The judge accepted some questions, modified others and rejected several questions dealing with legal standards and psychological defenses." In rejecting defendant's argument that the questions not asked would have "compell[ed] the jury to confront and examine their own prejudices and preconceived notions regarding mental illness and psychologically related defenses to crime," we noted:
The questions the trial court asked probed whether the prospective jurors had read or studied about psychology, psychiatry, medicine, or related fields, and inquired about the jurors' views on those sciences and whether those views would hinder the ability to follow the law as instructed by the court. These questions were sufficient to determine if any jurors had biases for or against mental health professionals and mental state defenses. The remaining questions proposed by defendant were thus completely unnecessary.The Moore Court observed, "In asking its own questions, the trial court in Murray acted properly within its discretion and sufficiently determined any juror bias or prejudice." Moore, supra, 122 N.J. at 454.
. . . .
The voir dire was sufficiently thorough to assure the selection of an impartial jury.
[Id. at 392-93 (internal quotation marks omitted.]
In O'Brien, supra, 377 N.J. Super. at 411-13, the defendant, relying on Moore, argued that the judge erred in refusing to pose a proposed voir dire question. We concluded that the judge's questions "adequately addressed the concern in Moore that jurors be asked questions to ascertain their ability to fairly and impartially consider insanity as a defense," and "like the voir dire in Murray, the questions sufficiently probed the jurors' attitudes and potential prejudices toward mental health sciences, professionals, and mental defenses." Id. at 414-15. The Supreme Court affirmed on this issue substantially for the reasons we expressed. State v. O'Brien, 183 N.J. 376, 378, modified and remanded on other grounds, 185 N.J. 252 (2005).
In this case, before trial the judge permitted defense counsel and the State to submit supplemental voir dire questions. He chose to use some and not others. As a result, in addition to the standard jury questions, the original jury questionnaire included sixty-five supplemental questions, including the following:
Have you ever studied or taken any philosophy or psychology or religion course? If so, please tell us what courses, where and when taken.Further, at defendant's request, the court asked potential jurors, "[a]re close family members or friends in any type of program of treatment, or counseling for mental health issues, addictions, or any program, either as a participant counselor, volunteer, or patient?"
Do you believe a person has the right to ignore the laws of this State in the name of religious freedom?
Do you believe people have the right to follow their own religious beliefs even if it harms third parties?
Have you, a family member, friend or member of your household ever committed a crime in the name of religious freedom?
Will you be able to follow the court instructions on the law even if it conflicts with your own personal beliefs?
Do you know of any reason why you cannot be a fair and impartial juror for this case?
Have you or any of your close friends or relatives had any experience with psychiatry or psychology?
If so, was there anything about that experience that bothers or troubles you?
Have you or a close friend or relative ever sought the assistance of a psychiatrist or psychologist to help with a personal problem?
If so, do you think this experience was helpful to you or your friend or relative?
Do you have any religious or philosophical misgivings about sitting as a juror in a criminal case?
In our opinion, although not specifically questioned about the insanity defense, this extensive questioning "probed the jurors' ability fairly to assess the testimony of psychiatric and psychological witnesses." Winder, supra, 200 N.J. at 253; see also O'Brien, supra, 377 N.J. Super. at 415 (the questions "sufficiently probed the jurors' attitudes and potential prejudices toward mental health sciences, professionals, and mental defenses"). "The voir dire was sufficiently thorough to assure the selection of an impartial jury." Murray, supra, 240 N.J. Super. at 393.
III.
Defendant did not object to the judge's instructions on the insanity defense which closely tracked the Model Jury Charge. For the first time on appeal, defendant argues the jury should have been instructed, pursuant to State v. Worlock, 117 N.J. 596, 611 (1990), that her conduct would be excused if "she acted under a command from God." In our opinion, the evidence did not support such a charge.
N.J.S.A. 2C:4-1 provides:
A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong."Because an act that is contrary to law will generally contravene societal morals, a defendant who claims that he or she lacked the capacity to comprehend either legal or moral wrong need not receive a charge distinguishing the two kinds of wrong." Worlock, supra, 117 N.J. at 611. However, "[i]n the exceptional case, such as the deific exception in which the defendant claims that he or she acted under a command from God, the court should instruct the jury that 'wrong' encompasses both legal and moral wrong." Ibid.
The Court has clarified that "Worlock cracked open the door only to a command delusion that, objectively viewed, could have rendered it impossible for its hearer to know the difference between right and wrong." Winder, supra, 2 00 N.J. at 249. "Belief in an idiosyncratic code of morality does not constitute the defense of criminal insanity." Id. at 250 (quoting Worlock, supra, 117 N.J. at 614) (internal quotation marks omitted).
In State v. Singleton, 418 N.J. Super. 177, 180 (App. Div.), certif. granted, 2 07 N.J. 188 (2011), we reversed the defendant's conviction based upon the trial "judge's failure to give the amplified instruction required by [Worlock and Winder]." We noted that "[o]ur role is limited to considering whether the evidence permitted a finding by the jury that defendant acted pursuant to a deific command." Id. at 192. We determined that the amplified instruction was required because, among other things, the evidence, including the defense expert's testimony, was sufficient to prove that defendant believed "he was acting pursuant to God's command." Id. at 202.
Such was not the case here. Defendant's expert, Dr. Morgan, emphasized that defendant "did not hear the voice of God. . . . She indicated she never had hallucinated. She never saw visions. But . . . God did . . . communicate with her through the writings in the Bible." Morgan further explained that defendant told him she would "read[] the Bible and draw[] impressions of God's word, God's will. God's guidance from it. . . . This ha[d] been something she ha[d] done throughout her life." In short, there was no evidence that defendant obeyed a deific command not to feed her children or arrange for their nourishment in some fashion. The evidence in the case did not support the amplified insanity charge approved in Worlock and Winder.
IV.
Defendant's final argument is that the judge incorrectly applied and weighed the aggravating and mitigating sentencing factors resulting in an excessive sentence. She also contends that the judge erred by imposing a discretionary term of parole ineligibility.
The judge found aggravating factors one (nature and circumstance of the offense); two (gravity and seriousness of harm); three (risk of re-offense); and nine (the need to deter). N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9). Based upon the defendant's lack of a prior criminal record, the judge found mitigating factor seven. N.J.S.A. 2C:44-1(b)(7).
The judge rejected defendant's request to be sentenced as a third-degree offender. See N.J.S.A. 2C:44-1(f)(2) (permitting the judge to sentence the defendant "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted" when "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands"). In this regard, the judge stated, "the suggestion . . . that that mitigating factor in some way []rises to a level to clearly and convincingly overcome these aggravating factors, is just not realistic."
The judge then considered whether to impose concurrent or consecutive sentences. Citing State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and State v. Carey, 168 N.J. 413 (2001), the judge concluded that although there were multiple victims, he was "not convinced that consecutive sentencing [was] appropriate."
The judge then stated, "I am convinced . . . these aggravating factors that I've noted clearly and convincingly substantially outweigh the one mitigating factor." He imposed four concurrent eight-year sentences with a four-year period of parole ineligibility as to each count.
Defendant argues that the judge erred in finding aggravating factors one and two because she acted "out of a sincere but misguided religious belief," and her children have "recovered and are now healthy." She also argues that the record did not support the judge's finding that she was a risk to re-offend.
Defendant further argues that the judge erred in finding only one mitigating factor because mitigating factors four and eight were demonstrated by the record. See N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"); and (b)(8) (her "conduct was the result of circumstances unlikely to recur").
In considering a "sentence challenged for excessiveness[,] [t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Ibid.; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
The judge rejected mitigating factor four, noting that he could not "accept [defendant's] religious beliefs somehow justif[ied] her conduct." Indeed, we note that contrary to the argument now raised in defendant's brief, at sentencing defendant insisted through counsel that she was not acting under any delusional thought process, but, rather, she was "praying" to God for guidance. Citing some of the psychiatric reports in the record, the judge noted that defendant's "particular personality profile" presented a risk to re-offend, thus implicitly rejecting mitigating factor eight. See State v. Towey, 244 N.J. Super. 582, 593 (App. Div.), certif. denied, 122 N.J. 159 (1990) (noting that aggravating factor three relates directly to mitigating factor eight). In both instances, we find no error in the judge's rejection of these mitigating sentencing factors.
In finding aggravating factor one, the judge specifically noted that defendant's conduct was "perverse and . . . cruel." He noted that defendant "was in total control" of her children in that she home-schooled them and ordered them to "pray[] for [their] own welfare during this period." He further noted that defendant was college-educated, had taught in the New York public school system, and had access to charitable resources. Regarding aggravating factor two, the judge observed that the children were particularly vulnerable because of "the unique relationship" defendant had with them. Additionally, defendant had taken them from their home and moved them into a remote cabin where they were completely dependent upon her. We conclude that the judge did not err in finding these two aggravating factors.
Having found that the aggravating sentencing factors substantially outweighed the mitigating sentencing factors, the judge was justified in imposing an eight-year sentence on each count and running those sentences concurrently to each other. We affirm that portion of the sentence imposed.
Defendant further argues that the judge erred by imposing a discretionary period of parole ineligibility. The State has failed to address the argument in its brief. At sentencing, the prosecutor specifically sought two consecutive sentences of more than seven and one-half years each, but he did not request the imposition of any period of parole ineligibility.
"After determining the sentence, the court must decide . . . whether to impose a period of parole ineligibility." State v. Kruse, 105 N.J. 354, 359 (1987). Pursuant to N.J.S.A. 2C:43-6(b), "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors . . . the court may fix a minimum term not to exceed one-half of the term set . . . during which the defendant shall not be eligible for parole." "In making the discretionary decision whether to impose a parole disqualifier, 'the court balances the same aggravating and mitigating factors used to determine the' length of the sentence, but applies a stricter standard that reflects the serious impact that a parole disqualifier will have on the 'real time' a defendant serves on his sentence." State v. Abdullah, 184 N.J. 497, 509 (2005) (quoting Kruse, supra, 105 N.J. at 359). Imposition of "[p]eriods of parole ineligibility are the exception and not the rule." Kruse, supra, 105 N.J. at 359 (alteration in original) (citation and internal quotation mark omitted). We therefore "expect that the longest permitted minimum term, one-half the base term, would ordinarily be imposed only on base terms at or near the top of the range for that degree of crime." State v. Towey, 114 N.J. 69, 81 (1989).
In this case, the judge did not impose the maximum term for a second-degree offense; rather, he sentenced defendant to eight years, i.e., closer to the middle of the sentencing range. Although he briefly stated the applicable statutory language -- the aggravating factors "clearly and convincingly substantially outweigh[ed] the one mitigating factor" -- our review of the entire transcript does not leave us confident that the judge followed the two-step process contemplated by Kruse. We remand the matter to the judge to reconsider the period of parole ineligibility imposed under the above-cited precedent.
Affirmed. We remand only for the purpose of reconsideration of the period of parole ineligibility imposed. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION