Opinion
DOCKET NO. A-1672-11T4
11-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. JEROD K. WISE, Defendant-Appellant/Cross-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief). Appellant/cross-respondent filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1273.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
Appellant/cross-respondent filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendant Jerod K. Wise was convicted of the first-degree murder of Curtis Johnson, N.J.S.A. 2C:11-3(a)(1) and (2), and acquitted of fourth-degree possession of a knife, N.J.S.A. 2C:39-5d, and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge sentenced defendant to imprisonment for life, with a thirty-five year period of parole ineligibility.
Defendant raises the following points on appeal:
POINT I
THE TRIAL COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION-PROVOCATION MANSLAUGHTER. (Not raised below)
POINT II
THE STATE'S INTRODUCTION OF OVER 20 PHOTOGRAPHS OF BLOODSTAINS, AS WELL AS THE BLOODY T-SHIRT RECOVERED FROM THE SCENE, WERE NOT PROBATIVE OF ANY DISPUTED ISSUE AND WERE HIGHLY PREJUDICIAL. (Not raised below)
POINT III
THE TRIAL COURT'S SENTENCING ANALYSIS WAS INADEQUATE AND [DEFENDANT]'S SENTENCE WAS EXCESSIVE.
A. The Trial Court Erred In Finding Aggravating Factor #2 Because The Victim's Death Is an Essential Element of Murder.
B. The Court Should Have Found Mitigating Factor #3.
POINT IV
[DEFENDANT]'S 35-YEAR PAROLE DISQUALIFIER IS LAWFUL AND CANNOT BE INCREASED ON REMAND.
In a pro se supplemental filing that does not contain point headings, defendant cites to five instances of alleged error, four of which assail the credibility of the State's witnesses. Additionally, defendant claims his "due process rights" were violated because he filed a pro se motion for discovery but never received a response. These arguments all lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
The State has cross-appealed. It argues that the sentence imposed was illegal because the period of parole ineligibility did not comply with the mandatory requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction for murder. We vacate the sentence imposed and remand the matter for resentencing consistent with this opinion.
I.
At approximately 9:00 or 10:00 p.m. on September 7, 2009, Brian Mitchell was with Johnson when both encountered defendant at the intersection of Market and Broad Streets in downtown Newark. All three men had been drinking. An argument erupted, Mitchell claimed, because defendant ripped Johnson's pants, and the men began to push and shove each other. According to Mitchell, no punches were actually thrown, and the incident ended within approximately fifteen seconds when the trio saw a police car.
At approximately 3:00 p.m. the next day, Mitchell and Johnson again encountered defendant near the same intersection. Mitchell testified that he and Johnson avoided defendant as they walked past him on the street, but as Johnson stopped to put on his iPod earphones, Mitchell heard Johnson's "body hit the side of the bus stop gate . . . ." Mitchell turned and saw Johnson clutching the side of his neck with defendant holding a knife. Defendant tried to "poke" Mitchell with the knife.
Bleeding profusely, Johnson ran across Market Street and passed out. Mitchell asked people to call 911, as he took off his shirt off and tried to staunch Johnson's bleeding. When Newark police detective Tywoo Thomas responded to the scene, he saw Johnson bleeding "from the upper part of his torso," and Mitchell "holding him, trying to comfort him." Johnson was later pronounced dead at University Hospital. The autopsy revealed that he had suffered a stab wound to his neck that severed his external jugular vein and carotid artery.
Further police investigation led to two other witnesses, Leon Smith and Deborah Steele. Smith testified that he saw defendant come up from behind Johnson and stab him. Smith picked defendant's photograph out of a photo array, and also identified him at trial. Steele also picked defendant's photo from an array and indicated he was the man she saw running from the scene as Johnson collapsed. Defendant's flight was recorded on surveillance video that was played for the jury.
From garbage bags in the area where defendant fled, police found a silver-colored folding knife that contained blood matching Johnson's DNA profile. They secured an arrest warrant for defendant and a search warrant for his residence. Upon executing the search warrant, police recovered a pair of bloodstained blue jeans, but testing revealed the stains did not match Johnson's DNA.
After waiving his Miranda rights, defendant gave a statement to police admitting that he stabbed Johnson. Defendant claimed that he overheard Mitchell and Johnson saying they were "gonna get" him as they walked past him on the street. Defendant told police he feared for his life when he stabbed Johnson.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Defendant reiterated his self-defense claim in his testimony before the jury. He admitted knowing Johnson and Mitchell prior to the incident of September 7, and acknowledged that all three were members of the Bloods street gang, although defendant belonged to a different "set" of the gang. According to defendant, that night, Mitchell and Johnson approached him and demanded money so they could purchase more alcohol. Defendant refused, and the pair then grabbed defendant's pockets and pushed him against a wall. Mitchell punched defendant in the face.
The next day, defendant was at a newsstand on Market and Broad Streets purchasing water as Mitchell and Johnson walked in his direction. Defendant stated that he saw their reflection in the newsstand window, and heard the pair say "there goes the ass right there . . . [l]et's get him."
Defendant stated that Johnson approached with "his hands up . . . like he was about to attack [him]." Defendant saw no weapon, but, fearing for his life, he described what happened next:
I had my blade in my back pocket. I pulled it out. The blade is easy, like when you pull it out, it could just flip out by itself . . . . So, when I did that, . . . naturally, in my head, I'm sayin[g], you know, if you pull out a knife on a person, the natural reaction the[y're] gonna do is to get back and try to move away from you. Nobody is gonna keep comin[g] towards somebody with a knife. But as he's doin[g] that, he [is] about five feet from me. So, I'm like, alright, you know, I'm just gonna swing a knife just to try to, you know, scare the guys off. Once I swung the knife, I never knew that the knife connected with the guy at all. Never knew the knifeMitchell and Curtis began "back-pedaling," and defendant fled immediately from the scene.
touched him. When I swung at him, he backed up. The guy hit me with like two [] punches at the back of my head.
II.
A.
During the charge conference, the prosecutor stated that given the testimony in the case, which she characterized as "at best an imperfect self-defense claim," the jury should be instructed regarding the lesser-included offenses of aggravated and reckless manslaughter. Defense counsel requested that the judge charge "self-defense." When asked by the judge if he was "asking for the aggravated [and] reckless manslaughter charge[s], the lesser-included offense[s]," defense counsel noted it was "an interesting question," and responded "yes, I am."
Defense counsel's summation focused the jury's attention primarily on defendant's claim that he acted in self-defense. The prosecutor, on the other hand, primarily asserted that defendant, smarting from the incident of the night before, intentionally sought revenge by killing Johnson.
For the first time on appeal, defendant contends the judge committed plain error by failing to sua sponte charge "passion- provocation" murder. In response, the State argues that the trial court had no obligation to provide the charge because "it was not clearly indicated in the record." We agree with the State.
"Because defendant did not object to the jury charge before the jury retired to deliberate, we will reverse only if the failure to charge the jury on passion/provocation . . . manslaughter was plain error 'clearly capable of producing an unjust result.'" State v. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting R. 2:10-2), certif. denied, 195 N.J. 522 (2008). "Not any possibility of an unjust result will suffice. The possibility must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
The Court has explained:
[C]ourts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted. Thus, when the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge. Only if the record clearly indicates a lesser-included charge -- that is, if the evidence is jumping off
the page -- must the court give the required instruction.
[State v. Denofa, 187 N.J. 24, 42 (2006) (citations omitted) (emphasis added).]
Passion/provocation manslaughter is a lesser-included offense of murder. State v. Robinson, 136 N.J. 476, 487-89 (1994). As the Court recently explained, "[v]oluntary manslaughter, also known as 'passion/provocation manslaughter,' occurs when a homicide which would otherwise be murder under [N.J.S.A.] 2C:11-3 . . . is 'committed in the heat of passion resulting from a reasonable provocation.'" State v. Galicia, 210 N.J. 364, 378-79 (2012) (quoting N.J.S.A. 2C:11-4(b)(2)).
"Passion/provocation manslaughter has four elements: (1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying." State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Mauricio, 117 N.J. 402, 411 (1990)). "The first two elements of the offense are objective; thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury." Ibid. (citing Robinson, supra, 136 N.J. at 491. "In determining whether to give a passion/provocation instruction, a trial court should look at the evidence in a light most favorable to defendant." Noble, supra, 398 N.J. Super. at 597 (citing Mauricio, supra, 117 N.J. at 412).
"The first element of adequate provocation addresses 'whether [or not] loss of self-control is a reasonable reaction.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 412) (alteration in original). "If no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person, the trial court should withhold the charge." Ibid. (quoting Mauricio, supra, 117 N.J. at 412).
"The second element looks at the cooling off period. Despite the existence of adequate provocation, 'a charge of passion/provocation manslaughter is not available if [defendant] should have cooled off before the killing.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 412-13) (alteration in original). "Although a trial court may withhold instructions if there was undeniably a reasonable cooling-off period, it is well-nigh impossible to set specific guidelines in temporal terms. Trial courts are therefore remitted to the sense of the situation as disclosed by the facts." Mauricio, supra, 117 N.J. at 413.
Defendant contends that the altercation the evening before he stabbed Johnson was adequately provocative. Despite the passage of fourteen or fifteen hours, defendant argues a reasonable jury could have concluded any cooling off period was inadequate because "Johnson reignited the hostilities by making any number of antagonistic remarks" before defendant stabbed him.
We acknowledge several cases have concluded that an instruction on passion/provocation manslaughter was appropriate in particular circumstances where the passage of time from the initial provocation was equal to or longer than it was in this case. See, e.g., State v. Taylor, 350 N.J. Super. 20, 40-42 (App. Div.) (provocation from verbal confrontation and slap of the defendant's girlfriend the night previously), certif. denied, 174 N.J. 190 (2002); State v. Viera, 346 N.J. Super. 198, 216-17 (App. Div. 2001) (continuing course of conduct was sufficient even though physical confrontation took place one month prior to the incident), certif. denied, 174 N.J. 38 (2002). However, in State v. Copling, 326 N.J. Super. 417, 431 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), we held that "[b]ecause a reasonable person would cool off in two-and-a-half hours after discovering that their brother had been attacked, the facts . . . do not satisfy the second element of passion-provocation manslaughter. Thus, the trial judge did not err in refusing to give the charge."
Even if we conclude a reasonable jury could find the passage of time was insufficient for defendant to have cooled down from the night before, it is undisputed that when the fatal confrontation occurred, only defendant was armed. "'[M]utual combat' can in certain circumstances give rise to passion/provocation mitigation." Galicia, supra, 210 N.J. at 380 (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)). "However, that combat 'must have been waged on equal terms and no unfair advantage taken of the deceased,' unlike a setting in which the defendant uses a deadly weapon against an unarmed victim." Ibid. (quoting Crisantos, supra, 102 N.J. at 274).
Thus, while the altercation the night before the stabbing was mutual combat essentially waged on equal terms, it is undisputed that Johnson was unarmed when stabbed during the second altercation. While defendant contends that Johnson uttered threatening words, words alone are insufficiently provocative so as to entitle defendant to the benefit of the passion/provocation charge. See Viera, supra, 346 N.J.Super. at 215 ("[O]rdinarily words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter.") (citation omitted).
Moreover, "the offense is not manslaughter where the defendant alone is armed." Id. at 216 (citing Crisantos, 102 N.J. at 274); see also Galicia, supra, 210 N.J. at 385 (passion/provocation did not apply where "the victim . . . did not die in a physical altercation 'waged on equal terms'"). In short, the evidence in this case was insufficient to permit a reasonable juror to conclude defendant fatally stabbed Johnson in the neck while "in a fury provoked by emotion or a violent attack." Galicia, supra, 210 N.J. at 369. Failure to give passion/provocation manslaughter instructions was not plain error.
B.
Defendant also argues that it was error to admit into evidence numerous photos of the bloody sidewalk where Johnson collapsed and "pieces of a t-shirt covered in blood." He argues that, since he admitted stabbing Johnson, the evidence lacked any probative value, or alternatively, that its probative value was "substantially outweighed by the risk of . . . undue prejudice . . . ." N.J.R.E. 403.
We examine the trial judge's evidentiary rulings under an abuse of discretion standard. State v. J.D., 211 N.J. 344, 354 (2012). "A trial court's decision to grant or deny an evidentiary application will generally be upheld unless it is so wide of the mark as to result in a manifest injustice." Ibid. (internal quotation marks and citation omitted). As it particularly relates to crime scene or autopsy photographs, the Court has said "the admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests within the discretion of the trial judge." State v. Moore, 122 N.J. 420, 466-67 (1991) (citations omitted).
If we were to conclude that the evidence in this case was wrongly admitted, "[b]ecause defense counsel did not object . . . at trial, we review . . . under the plain error standard." State v. Taffaro, 195 N.J. 442, 454 (2008) (citing R. 2:10-2). "Applying that standard, an error is reversible if it was 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "In other words, was the possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'?" Ibid. (quoting Macon, supra, 57 N.J. at 336.
We are convinced that admission of the photographs did not amount to prejudicial error requiring reversal of defendant's conviction. They clearly had some probative value by defining the crime scene, and the photographs provided the jury with a sense of the relative locations of the parties involved. The bloody t-shirt was apparently seen in one of the photographs, next to Johnson's iPod and headphones recovered at the crime scene. We agree with defendant that the shirt itself lacked any probative value. But, viewing the trial record as a whole, we cannot conclude that its admission in evidence was plain error.
We affirm defendant's murder conviction.
III.
At sentencing, the State moved for imposition of a discretionary extended term because defendant was a "persistent offender." N.J.S.A. 2C:44-3(a). Finding defendant to be eligible based upon his prior criminal convictions, the judge granted the motion.
The judge found aggravating factors one, two, three, six and nine applicable. See N.J.S.A. 2C:44-1a ((1) "[t]he nature and circumstances of the offense"; (2) "[t]he gravity and seriousness of harm inflicted on the victim; (3) the risk defendant will re-offend; (6) "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and (9) the need for deterrence.) The judge found no mitigating factors applied. Applying these findings, the judge sentenced defendant to an extended term of life in prison with a 35-year period of parole ineligibility.
Defendant first argues the court improperly applied aggravating factor two. The State concedes this was error. See, e.g., State v. Pineda, 119 N.J. 621, 627 (1990) ("When the death of the victim is an element of the crime, it cannot be considered as an aggravating factor for sentencing purposes."). Defendant also contends that the judge should have found mitigating factor three applied. See N.J.S.A. 2C:44-1b(3) ("The defendant acted under a strong provocation."). The argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). It suffices to say that such a finding is inconsistent with the jury's rejection of defendant's self-defense claim, and its determination that defendant committed knowing or purposeful murder.
Because the judge improperly considered and weighed aggravating sentencing factor two, we remand the matter for resentencing. The question remains, however, whether on remand the judge may impose no more than a thirty-five-year parole disqualifier.
We start with the proposition that, as the State contends, defendant's sentence was illegal. Defendant was subject to the provisions of the NERA. As a result, the judge was required to "fix a minimum term of 85% of the sentence imposed," during which defendant is ineligible for parole. N.J.S.A. 2C:43- 7.2(a). NERA further provides that "[s]olely for the purpose of calculating the minimum term of parole ineligibility . . ., a sentence of life imprisonment shall be deemed to be 75 years." N.J.S.A. 2C:43-7.2(b). Thus, imposition of a life sentence meant that, pursuant to NERA, defendant was ineligible for parole until he served eighty-five percent of his seventy-five year sentence, or sixty-three years and nine months.
Defendant acknowledges this. However, at the same time, he contends that based on principles of double jeopardy and fundamental fairness, the judge cannot impose a term of parole ineligibility greater than thirty-five years. The State asserts, however, that upon resentencing, the judge should be free to impose the mandatory period of parole ineligibility under NERA, even if it is longer than thirty-five years.
Rule 3:21-10(b)(5) provides that "an order may be entered at any time . . . correcting a sentence not authorized by law including the Code of Criminal Justice." "There are two categories of illegal sentences: (1) those that exceed the penalties authorized by statute for a particular offense and (2) those that are not in accordance with the law, or stated differently, those that include a disposition that is not authorized by our criminal code." State v. Schubert, 212 N.J. 295, 308 (2012). The Court noted that an illegal sentence that has not been completely served "may be corrected at any time without impinging upon double-jeopardy principles." Id. at 309 (citing State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2002) (internal quotation marks omitted)).
In Austin, supra, 335 N.J. Super. at 494, we reversed defendant's sentence that included a NERA parole disqualifier because the statute was inapplicable. We nevertheless noted that on remand, the judge was required to impose a period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, as otherwise the sentence would be illegal. Ibid.
The cases defendant relies upon are all distinguishable. In State v. Cooper, 402 N.J. Super. 110, 112 (App. Div. 2008), certif. denied, 203 N.J. 94 (2010), the defendant was originally sentenced to a fifteen-year term of imprisonment, with a NERA parole disqualifier for his conviction of first-degree aggravated sexual assault, and a seven-year consecutive sentence for burglary. We reversed, finding no basis for imposition of a consecutive sentence. Ibid. On remand, the judge imposed a seventeen-year sentence on the aggravated sexual assault, thereby increasing the defendant's period of parole ineligibility under NERA by one-and-three-quarters years. Id. at 113.
Defendant again appealed, and we again reversed. Notably, we "assume[d], without deciding, that there [was] no federal double jeopardy or due process violation by an increase of the NERA ineligibility term . . . ." Id. at 117. Instead, applying state law principles we directed on remand that the court determine the length of defendant's parole ineligibility period under the original sentence, including the consecutive sentence that did not include a parole disqualifier. Ibid. We held that thereafter, "[t]he original period before parole eligibility cannot be increased, and the new specific term sentence for aggravated sexual assault cannot result in a specific term 85% of which is greater than the original period of ineligibility." Ibid.
Cooper is distinguishable. First, in that case, the original sentence imposed was not an illegal sentence. It was improper because "there was no acceptable basis for the consecutive sentence [for] burglary[.]" Id. at 112 (first alteration in original). Second, the increase in the NERA period of parole ineligibility resulted from an increase in the base term of the sentence on aggravated sexual assault from fifteen to seventeen years. In this case, if the judge again imposes a life sentence, there would be no increase in the base term that might occasion the increase in the term of parole ineligibility; indeed, if in the exercise of his discretion, the judge on remand imposes a base term of less than life, defendant's sentence would be decreased, not increased.
Another case cited by defendant, State v. Eigenmann, 280 N.J. Super. 331 (App. Div. 1995), is also inapposite. There, we reversed the defendant's original sentence as a young adult offender, pursuant to N.J.S.A. 2C:43-5, because the judge imposed an indeterminate, twenty-eight month period of incarceration that was illegal. Id. at 334. On remand, a second judge vacated the defendant's sentence and "chose not to sentence defendant as a young adult offender but rather committed him to the custody of the Commissioner of the Department of Corrections for concurrent terms aggregating fifteen years." Id. at 335.
Based on double jeopardy concerns, we held that "once service of the sentence commence[s], the lawful discretionary elements of the sentence . . . [cannot] be made more burdensome." Id. at 348 (emphasis added). Since the original judge's exercise of discretion in imposing a youthful offender sentence was proper, we reversed the sentence again and remanded for the "resentencing of defendant as a young adult offender to concurrent indeterminate terms of five years each . . . ." Id. at 348.
Eigenmann has no application to this case. While the extended base term selected by the judge in this case results from the exercise of discretion, the period of NERA parole ineligibility that attaches is mandatory.
Nor does the holding in State v. Heisler, 192 N.J. Super. 586 (App. Div. 1984), apply. There, the defendant was originally sentenced to probation with a condition that he serve 364 days in the county jail, a period which at the time was in excess of the legal limit. Id. at 588. He challenged the sentence as illegal, and we reversed. Id. at 588-89. On remand, the judge imposed a five-year indeterminate sentence and defendant again appealed. Id. at 589.
We recognized that "a court is free to vacate an illegal sentence and impose a sentence mandated by law, even when the mandatory sentence is greater than the original illegal sentence." Id. at 592 (citations omitted). But, we also stated that "[t]he present case . . . is distinguishable from cases involving mandatory sentences. Here the judge set aside an illegal sentence and imposed a substantially harsher sentence not required by law." Ibid. "[G]iven the substantial and unjustifiable discrepancy between the original illegal sentence and that imposed upon resentencing, we [were] unable to conclude that the [new sentence] . . . comport[ed] with principles of fundamental fairness and due process[,]" and thus reversed. Id. at 593.
In this case, any increase in the period of parole ineligibility upon resentencing would not result from a discretionary decision of the judge. If the NERA ineligibility period exceeds thirty-five years after resentencing on remand, that increase arises solely from the correction of the illegality of the judge's original sentence.
We understand that "in New Jersey it is fundamental that 'the basic sentencing issue is always the real time defendant must serve, and we have always recognized that real time is the realistic and practical measure of the punishment imposed.'" Cooper, supra, 402 N.J. Super. at 116 (quoting State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000)). And, depending upon the base term set by the judge on resentencing, defendant's actual "real time" may increase. However, if the original sentence complied with the Criminal Code, defendant's life sentence required a period of parole ineligibility of sixty-three years and nine months. We fail to see why he should now necessarily reap the benefit of that error.
Defendant's conviction is affirmed; we vacate the sentence imposed and remand the matter for re-sentencing because the judge mistakenly found aggravating factor two applied. After fixing the base term for defendant's murder conviction, the judge shall impose a period of parole ineligibility consistent with the requirements of NERA. 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