Opinion
DOCKET NO. A-0388-12T4
11-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. K.C., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-08-970. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Tried to a jury, defendant K.C. was convicted of the murder of his wife, E.T. (Eva), by drowning her in a bathtub during an argument. Defendant was also convicted of endangering the welfare of his then eight-year-old daughter, K.C. (Katy), who watched her mother struggle while defendant held her down in the bathtub. Defendant was further found guilty of two counts of hindering prosecution for concealing evidence and providing false information to police, and one count of tampering with evidence. Defendant received a cumulative fifty-year sentence, eighty-five percent without parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We utilize initials and pseudonyms to protect the child's identity.
On appeal, defendant claims that the State filed a superseding indictment in retaliation for his refusal to enter into a plea agreement; his right to a speedy trial was violated by the three-and-a-half-year delay between his arrest and the start of trial; the jury instruction on murder constituted plain error because the court did not include his theory that Eva's death was accidental; and his sentence was excessive. After a review of the record and applicable law, we affirm the convictions and the sentence imposed.
I.
On the morning of May 9, 2008, Katy was awakened by her mother screaming, "Dios ayude me," or, "God help me." She heard splashing and loud thumping coming from the bathroom. When she went into the bathroom, she saw Eva lying face-up in the bathtub with defendant on top of her trying to grab her hands, while water from the bathtub's faucet splashed on her. Eva was moving her legs while defendant was pushing her down, preventing her from getting out of the bathtub. Katy observed that her mother was wearing black pants and white socks. When she asked her father what had happened, he told her that everything was fine and she should go back to her room. Later, Katy left her room and saw her mother still in the bathtub with the water overflowing and part of her thigh and foot sticking out. She then heard her father call her uncle and then dial 911.
Sergeant Michael Andrisano of the Morristown Police Department responded and was met at the door by defendant. Andrisano followed defendant to the bathroom where he observed Eva lying naked in the bathtub submerged under water. Andrisano and another officer pulled Eva out of the bathtub and began administering CPR. When emergency medical personnel arrived, they detected a pulse and transported Eva to the hospital.
Defendant told Andrisano that he had come home from work at about 6:30 that morning and his wife was taking a shower. When he went to use the bathroom, he allegedly saw Eva lying in the bathtub with water from the showerhead pouring down on her face. He grabbed Eva to pull her out of the water, but she hit her face on the tub spout, went limp, and then fell back into the water. Defendant then called 911.
Later that morning, after Andrisano informed defendant that Eva was not dead and still had a pulse, he changed his story. Defendant said that when he walked into the bathroom, Eva was lying in the tub with water from the tub spout running into her mouth. When he reached in to grab her, defendant said Eva swung at him, hitting his arm, and said something like "no" or "stop." He then dropped Eva back into the tub and dialed 911.
Z.S. (Zelda), Eva's sister, testified that she saw defendant in the hospital later that day and noticed a scratch on his face. Defendant told her that he had had an argument with Eva after Eva told him she wanted to leave him and asked for a divorce. Defendant told Zelda that he punched Eva after she pushed him and that they both fell into the bathtub. When Zelda asked defendant why he had changed his story to the police, he told her, "don't worry."
Eva's mother, R.V. (Renee), testified that when she saw defendant at the hospital on May 9, she observed a scratch on his face. When she asked him how he had gotten the scratch, he said that he did not know. When Renee asked defendant if he had had a fight with Eva, he replied, "I don't know." At the hospital the next day, Renee overheard defendant tell Katy, "Don't tell anyone any of what you saw."
Lieutenant Steven Wilson of the Morris County Prosecutor's Office returned to defendant's home on May 10 and, pursuant to a search warrant, retrieved a black garbage bag from the back of a green minivan parked outside the house. Inside the bag were black pants, white socks, two towels, a white T-shirt, and a pair of men's boxer shorts. The clothing was wet.
Vanessa Trespalacios, the hospital admitting physician, testified that Eva had a small abrasion over her left eyelid, a diffused injury to the brain which caused a great deal of swelling, and fluid in her chest. Dr. Trespalacios concluded that Eva must have been deprived of oxygen for at least three minutes to sustain such injuries.
On May 14, 2008, Eva was determined to be brain-dead. After her organs were harvested and life-support discontinued, she was pronounced dead later that day.
Carlos Fonseca, Morris County's Deputy Medical Examiner, performed an autopsy on Eva and found two areas of hemorrhages on the left side of her forehead. Dr. Fonseca determined that the cause of death was cerebral anoxia (lack of oxygen) due to near drowning, and classified Eva's death as a homicide.
Defendant called two witnesses. Michael Thorne testified that he managed a restaurant where defendant was employed as a cleaner. When Thorne arrived at the restaurant on the morning of May 9, 2008, the restaurant had been cleaned and he assumed it had been done by defendant, who usually worked from 2:00 a.m. until 5:00 a.m.
Defendant also called Darren Youker, who worked at the hospital where Eva was admitted. Youker testified that on May 10, 2008, he responded to a medical emergency at the hospital and observed defendant receiving oxygen after he apparently fainted. Defendant did not testify.
II.
On appeal, defendant raises the following points:
POINT I
SUPERSEDING INDICTMENT NO. 11-08-970, OBTAINED ABSENT NEW EVIDENCE, WAS SOUGHT IN RETALIATION OF THE DEFENDANT'S DEMAND FOR TRIAL AND CONSTITUTES PROSECUTORIAL VINDICTIVENESS. (NOT RAISED BELOW)
POINT II
THE INORDINATE DELAY BETWEEN INDICTMENT AND TRIAL RESULTED IN A VIOLATION OF DEFENDANT'S SPEEDY TRIAL RIGHT. (NOT RAISED BELOW)
POINT III
THE COURT ERRED IN NOT CHARGING CAUSATION BECAUSE THE THEORY OF DEFENSE WAS THAT THE DEATH OF EVA WAS AN ACCIDENT. (NOT RAISED BELOW)
POINT IV
THE DEFENDANT'S AGGREGATE SENTENCE OF 50 YEARS, 45 YEARS OF WHICH WAS SUBJECT TO NERA, WAS MANIFESTLY EXCESSIVE.
A.
Defendant argues for the first time on appeal that the superseding indictment on which he was tried was filed in retaliation for his failure to accept a plea offer. He claims this violated his due process rights.
The initial indictment (08-07-878) was filed on July 29, 2008, and charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). On January 26, 2009, the State presented a written plea offer in which it agreed to recommend that defendant receive the minimum sentence on the murder conviction, thirty years, all of which would be served without parole. The State agreed to keep the offer open until March 6, 2009, and advised defendant that if he did not accept the offer, the State would "seek a superseding indictment to include charges related to the evidence [defendant] secreted." At defendant's request, the State extended the deadline to March 20, 2009.
Defendant did not accept the plea offer and on May 19, 2009, a superseding indictment (09-05-542) was filed adding one count of witness tampering, N.J.S.A. 2C:28-6(1), and two counts of hindering his apprehension, N.J.S.A. 2C:29-3(b)(1) and (4).
Defendant moved to dismiss the superseding indictment on several grounds, including prosecutorial vindictiveness. The court denied the motion, finding neither an "improper motive" in filing the indictment nor evidence that it was "vindictively sought" because defendant failed to accept the plea agreement.
A second superseding indictment (11-08—970) was returned on August 18, 2011, adding one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and one count of third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1) and (2).
Although defendant moved to dismiss this indictment, he did not raise the retaliation argument he now presents. Thus, we employ the plain error standard in our review, and will disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-1.
Prosecutorial vindictiveness involves a violation of due process, whereby the State retaliates against a defendant for exercising a legal right. State v. Gomez, 341 N.J. Super. 560, 571 (App. Div.), certif. denied, 170 N.J. 86 (2001). "[A] reindictment following certain judicial action that subjects defendant to greater punishment than did a prior indictment is presumptive evidence of retaliation for the exercise of constitutional rights." State v. Long, 119 N.J. 439, 465 (1990) (citing Blackledge v. Perry, 417 U.S. 21, 27-28, 94 S. Ct. 2098, 2102, 40 L. Ed. 2d 628, 634 (1974)). In Blackledge, the Supreme Court held that a presumption of prosecutorial vindictiveness applied where a defendant successfully appealed a misdemeanor conviction and obtained a trial de novo, and the prosecutor then sought a felony indictment based on the same underlying acts. Ibid.
The presumption of prosecutorial vindictiveness is not applicable, however, when the prosecutor's actions are part of the "give and take" of plea bargaining:
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offense, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.
[Bordenkircher v. Hays, 434 U.S. 357, 364, 98 S. Ct. 663, 668-69, 54 L. Ed. 2d 604, 611 (1978) (internal quotation marks omitted).]
In the pretrial setting, the Supreme Court has advised that courts should be cautious about applying an inflexible presumption of prosecutorial vindictiveness:
In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this
stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystalized. . . .
. . . .
A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. . . . [T]he initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.
[United States v. Goodwin, 457 U.S. 368, 381, 102 S. Ct. 2485, 2492, 73 L. Ed. 2d 74, 85 (1982) (footnote omitted).]
"[A]lthough there is an opportunity for prosecutorial vindictiveness in the pretrial stage, it is insufficient to justify a presumption of vindictiveness for the pretrial action of adding or substituting charges." Gomez, supra, 341 N.J. Super. at 574 (citations omitted). Filing additional charges after a defendant asserts a right prior to trial should not result in that presumption. Id. at 575. "When the presumption does not apply . . . the defendant must affirmatively prove actual vindictiveness." State v. Bauman, 298 N.J. Super. 176, 205 (App. Div.), certif. denied, 150 N.J. 25 (1997).
In Bauman, the defendant argued that the prosecutor had acted vindictively in obtaining the indictment after the defendant had failed to enter into a plea bargain. Id. at 199. We held that the defendant had failed to prove actual vindictiveness. Id. at 206. The prosecutor's actions did not constitute a threat, according to the court, because "he merely told defense counsel that he intended to obtain a superseding indictment if plea negotiations proved fruitless." Ibid.
Here, defendant did not raise the vindictiveness claim in his challenge to the second superseding indictment, and fails to identify any evidence in the record to support his assertion that the prosecutor obtained that indictment because of defendant's refusal to accept the plea offer. As in Bauman, the prosecutor merely informed defendant that additional charges might be sought in a superseding indictment if he did not accept the plea offer.
Moreover, the third successive prosecutor who handled the case provided a reasonable explanation for why she sought to add the endangering count:
When I first got this case . . . [t]he first thought I had was why there was no endangering charge on here. . . .
. . . .
I'm sitting mulling over the evidence that I see in this case. What's right about what he should be charged with. There are two victims in this case, two. Not just the dead woman that he was married to but his child. That's how I view the case[.]
We find no evidence to support defendant's claim that the State violated his due process rights by filing the second superseding indictment after plea negotiations concluded.
B.
Defendant next argues for the first time on appeal that the State violated his Sixth Amendment right to a speedy trial by failing to bring him to trial for more than three years from the time he was charged.
The Sixth Amendment to the United States Constitution protects a defendant's right to a speedy trial after arrest or indictment. Long, supra, 119 N.J. at 469. A speedy trial violation claim is analyzed under a four-part test: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how the defendant asserted the right; and (4) the amount of prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972).
Our Supreme Court recently reaffirmed that the Barker factors remain dispositive when assessing a claim that a defendant has been denied a speedy trial. State v. Cahill, 213 N.J. 253, 271 (2013). "None of the Barker factors is determinative, and the absence of one or some of the factors is not conclusive of the ultimate determination of whether the right has been violated." Id. at 267 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "All factors are related, thereby requiring a balancing of all applicable factors while recognizing the fundamental right bestowed on a defendant to a speedy trial." Ibid.
In Cahill, the Court determined that a sixteen-month delay between a remand of a driving-while-intoxicated charge to the municipal court and the notice of trial deprived the defendant of his right to a speedy trial. Id. at 273-74. The Court first noted that longer delays are tolerated for more serious crimes, but not for "straightforward, quasi-criminal" municipal offenses. Id. at 273. In Cahill, the delay was chargeable entirely to the State. Ibid. Cahill asserted his speedy trial right at the trial level, and established that the delay caused him prejudice in employment interruptions, anxiety, and financial harm. Id. at 274. The Court found dismissal was the only appropriate remedy to redress the prejudice suffered by the defendant. Id. at 276.
In this case, the State conceded that 1384 days had elapsed between defendant's arrest and the first day of trial. Because defendant failed to make a speedy trial claim below, the prosecutor did not have the opportunity to identify the reasons for the delay. However, the record reveals that numerous pre- trial motions were filed by defendant, including several motions to dismiss the indictments. The case was handled by three different prosecutors and two different defense attorneys. Thus, the delay was not solely attributable to the prosecution, nor is there evidence that any delay caused by the State was deliberate.
Defendant bears the burden of showing prejudice, and his failure to assert the right weighs heavily against his argument that his right to a speedy trial was violated. State v. Misurella, 421 N.J. Super. 538, 545 (App. Div. 2011). The mere possibility of prejudice is not sufficient. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 656, 88 L. Ed. 2d 640, 654 (1986). Impairment of the ability to defend against the charges is the "weightiest form of prejudice." State v. Fulford, 349 N.J. Super. 183, 194 (App. Div. 2002).
Defendant's only claim of prejudice is "oppressive pretrial incarceration," and he makes no claim, let alone a showing, that the delay impaired his defense. Although defendant was incarcerated for over 1300 days prior to trial, he received credit for time served at sentencing. This credit mitigates the potential prejudicial effects of incarceration where the defendant has not pointed to additional, specific prejudice flowing from the delay. Hakeem v. Beyer, 990 F.2d 750, 762 (3d Cir. 1993).
Weighing the four Barker factors, as viewed through the prism mandated in Cahill, we are satisfied that the length of the delay was not excessive; the reasons for the delay were partially attributable to defendant; defendant failed to assert his right to a speedy trial at the trial level; and defendant has failed to demonstrate prejudice. Defendant has failed to establish that his right to a speedy trial was violated.
C.
Defendant argues for the first time on appeal that the court erred in not charging the jury that Eva's death could have been the result of an accident. As we find no evidence in the record to support such a theory, we conclude that the failure to instruct the jury as to accidental death was not error.
In instructing the jury on murder, the court advised:
[I]n order to convict [defendant] of murder, the State must prove beyond a reasonable doubt that [defendant] either purposely or knowingly caused the victim's death or serious bodily injury resulting in death.
. . . .
In order for you to find [defendant] guilty of purposeful serious bodily injury murder, the State must prove beyond a reasonable doubt that it was [his] conscious object to cause serious bodily injury that then resulted in the victim's death, that [defendant] knew that the injury created a substantial risk of death and that it was highly probably [sic] that death would
result.
In order for you to find [defendant] guilty of knowing serious bodily injury murder, the State must prove beyond a reasonable doubt that [defendant] was aware that it was practically certain that his conduct would cause serious bodily injury that then resulted in the victim's death, that [defendant] knew that the injury created a substantial risk of death, and that it was a high probably [sic] that death would result.
Whether the killing is committed purposely or knowingly causing death or serious bodily injury resulting in death must be within the design or contemplation of [defendant].
Defendant did not object to this instruction. Thus, we again employ the plain error standard and defendant's argument will not be considered unless an error possessed the clear capacity to bring about an unjust result. R. 2:10-2.
Correct jury instructions are essential for a fair trial. State v. Green, 86 N.J. 281, 287 (1981). Erroneous instructions on material issues are presumed to be reversible error. State v. Grunow, 102 N.J. 133, 148 (1986). The charge as a whole needs to be examined to determine the overall effect of the alleged error. State v. Wilbely, 63 N.J. 420, 422 (1973). Any finding of plain error depends on the strength and quality of the State's evidence, not the strength of the defendant's arguments. State v. Cotto, 182 N.J. 316, 326-27 (2005).
In general, jury instructions on alternative theories should be given even when the theory is supported only by very slight evidence. State v. Powell, 84 N.J. 305, 317 (1980). Specifically, "whenever the State and defendant offer contrasting theories of causation, the court's charge to the jury must explain the legal consequences of accepting not only the State's theory, but also the defendant's theory of causation." State v. Eldridge, 388 N.J. Super. 485, 499-500 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007). That said, a court may instruct the jury on an alternative theory only if there is some "rational basis in the facts" that supports the theory. State v. Moultrie, 357 N.J. Super. 547, 556 (App. Div. 2003).
Defendant relies on Eldridge, supra, and State v. Martin, 119 N.J. 2 (1990), in arguing that the court erred on not charging causation. We find that reliance misplaced.
In Martin, the defendant's murder by arson conviction was reversed because the trial court failed to instruct the jury on the defendant's theory that although he had set the fire, the victim would not have died had the building in question not been in poor fire safety condition, and had the victim not been intoxicated. Id. at 16-18. The Court noted that a jury charge consistent with the defendant's version of the facts could have led to acquittal or conviction for a lesser-included offense. Id. at 16-17. The Court added that the need for an adequate charge on causation was "particularly compelling . . . because the State and defendant offered contrasting theories of causation, each supported by expert testimony." Id. at 15.
In Eldridge, supra, the defendant driver alleged that an intervening cause, a passenger pushing on his head, broke the causal chain and absolved him of vehicular homicide. 388 N.J. Super. at 498-99. Moreover, the defendant in Eldridge "presented the jury with different theories of causation, each supported by expert witness testimony, and the trial court was therefore obliged to provide the jury with appropriate instructions depending on which version of causation it chose to accept." Id. at 498.
Sergeant Andrisano testified that defendant gave him two completely different versions of what happened in the bathroom. In the first version, defendant claimed that he grabbed Eva to pull her out of the water, but she hit her face on the tub spout, went limp, and then fell back into the water. In the second version, however, defendant implied that Eva rejected defendant's efforts to pull her out of the tub. Defendant's third account, told to Zelda, was that he punched Eva after she told him she wanted a divorce, and they both fell into the tub.
At trial, defendant's attorney argued to the jury during her summation that defendant attempted to lift Eva from the tub but "she was too heavy and he panicked. . . . [and] he tried to get her out, she hit her head a little bit, she fell back in the water[.]" However, defendant presented no evidence at trial that Eva was too heavy for him to lift out of the tub. In all three of his versions, defendant admitted that he left Eva unconscious in a tub, either submerged under water or with water pouring into her mouth. Defendant did not claim, let alone submit evidence, that Eva's death was caused by something other than his decision to leave her unconscious in the tub.
Dr. Fonseca testified that it would take a healthy woman of Eva's age approximately three minutes without oxygen to sustain the brain damage that she suffered. He stated that it would take five to ten minutes to die from those injuries, and even longer if the drowning was caused by water pouring over the face. Dr. Fonseca concluded to medical certainty that the manner of Eva's death was homicide by drowning.
Unlike Martin and Eldridge, defendant neither claimed an intervening cause for Eva's death, nor produced an expert witness to contradict the State's experts and support a claim that Eva's drowning death was accidental. Defendant did not present the jury with an alternate theory of causation supported by any evidence, whether presented by an expert or otherwise.
We conclude that the trial court's instruction on causation was not error because defendant failed to produce evidence to support a rational theory that Eva's death was accidental. In any event, defendant cannot show there was a clear capacity for producing an unjust result, Rule 2:10-2, because the court's instructions adequately conveyed to the jury that it had to find that defendant caused Eva's death in order to convict him, and he points to nothing in the causation instruction that would have altered the result.
D.
Finally, defendant maintains that his aggregate sentence of fifty years, with over thirty-eight years to be served without parole, was manifestly excessive and the result of an improper assessment of the aggravating and mitigating factors. He claims that he should have received the minimum thirty-year sentence.
The trial court found two aggravating factors. Because of defendant's lack of remorse, the court found the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3). The court also found the need to deter, N.J.S.A. 2C:44-1(a)(9), describing defendant's crime:
[Defendant's] actions . . . were cruel, they were depraved, they were vicious, and they're just simply unimaginable. This conduct can never be tolerated.
And as the murder was taking place, [defendant's] daughter walked into that bathroom and, at that point, [defendant] could have stopped. . . . It should have been a sobering moment for you where you could have made a different choice. Nevertheless, you told her that everything was all right and that she should go back to her room. And despite your eight-year-old daughter witnessing these horrific events, you continue[d], and that's deplorable.
The court found defendant's lack of a prior criminal history, (b)(7), as the sole mitigating factor, and specifically rejected the application of mitigating factors (b)(8), defendant's conduct was the result of conduct unlikely to recur, and (b)(9), defendant's character and attitude made it unlikely that he would commit another offense. The court found that that factor (b)(8) did not apply because defendant had "not acknowledged responsibility for this murder. There has been a complete lack of remorse in this case." As to (b)(9), the court found:
[H]e's been described as a good father, a good person, a good husband, honest, responsible and hard-working. And the State's conceded that he is or was a hard-working man. Further, other people describe him [as] . . . "incapable of causing harm to his family," and that he is . . . "an exemplary person incapable of any violent acts . . . much less against his loved
ones." These letters and statements are in direct contrast to what took place in this case and [defendant's] actions in this case are completely divergent . . . from his public persona. I do question how well these individuals know [him] based on the testimony that I heard . . . .The court also rejected the application of mitigating factor (b)(11), whether imprisonment would entail excessive hardship to defendant or his dependents, because "this was brought about by [defendant] himself."
Again, character and attitude; there's been no acceptance of responsibility in this case. I've never heard an apology. No regret has been expressed. And, therefore, I find that his character and his attitude do not suggest that this could not occur again.
In reviewing a sentence, we must determine whether the findings of fact on the aggravating and mitigating factors were based on competent and credible evidence in the record, whether the court applied the correct sentencing guidelines, and whether the application of the facts to the law constituted such an error of judgment as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).
Defendant claims that aggravating factor (a)(3) should not have applied because this was his first criminal offense. However, this factor is not dependent on a prior conviction. The risk that a defendant will commit another offense is supported by evidence that the defendant denied responsibility for the crime. State v. Carey, 168 N.J. 413, 427 (2001).
Defendant claims that mitigating factors (b)(8) and (b)(9) should have applied. However, because (a)(3) is related to (b)(8), State v. Towey, 244 N.J. Super. 582, 593 (App. Div.), certif. denied, 122 N.J. 159 (1990), defendant's failure to acknowledge responsibility for the crime supports the court's refusal to conclude that these were circumstances unlikely to recur. Lack of remorse has been held to make (b)(9) inapplicable. State v. O'Donnell, 117 N.J. 210, 216-17 (1989).
Defendant next argues that mitigating factor (b)(11), excessive hardship, should have applied because his imprisonment will result in serious hardship for his dependent children. While hardship to children may be a significant mitigation factor, State v. Mirakaj, 2 68 N.J. Super. 48, 51 (App. Div. 1993), the hardship in this instance was created by defendant. By killing Eva, he deprived his children of their mother. It is illogical to argue that he should benefit because his children will now be deprived of their father when he is responsible for creating that condition.
Finally, the length of defendant's sentence was not excessive. The court determined that imposing the minimum sentence of thirty years would be an injustice and insufficient to deter. It sentenced defendant to forty-five years on the murder conviction, and five years on the conviction for endangering the welfare of a child, with those sentences to run consecutively. It sentenced defendant to concurrent three-year terms on the hindering convictions, and the tampering conviction was merged into the hindering convictions.
For purposes of NERA, life imprisonment is calculated to be seventy-five years. N.J.S.A. 2C:43-7.2(b). Therefore, the sentencing range for the murder conviction was between thirty and seventy-five years. As such, the forty-five-year murder sentence imposed here was in the lower half of that range.
We are satisfied that the sentence imposed properly balanced the aggravating and mitigating factors, was within the applicable sentencing range, and does not shock the conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPHJATE DIVISION