STATE OF NEW JERSEY VS. HUMPHREY COHEN (83-03-1433, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0832-19T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HUMPHREY COHEN,
Defendant-Appellant.
____________________________
Submitted January 6, 2021 – Decided February 4, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 83-03-1433.
Humphrey Cohen, appellant pro se.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Humphrey Cohen, who is pro se, appeals from a July 29, 2019
order that denied his motion under Rule 3:21-10(b) to correct an illegal sentence.
We affirm the order.
I.
The procedural history and facts of this case are set forth in our published
opinion on defendant's direct appeal, State v. Cohen, 211 N.J. Super. 544 (App.
Div. 1986), in which we affirmed defendant's sentence and conviction. In 1984,
defendant was found guilty of felony murder, N.J.S.A. 2C:11-3(a)(3) (count
one); purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1)(2) (count two);
first-degree robbery, N.J.S.A. 2C:15-1 (count three); and unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count four). These counts carried the
potential of a death sentence penalty. See Cohen, 211 N.J. Super. at 547.
In May 1984, defendant was sentenced to life imprisonment with thirty
years of parole ineligibility on count two and fifteen years with seven years and
six months of parole ineligibility on count three. The sentences were to run
consecutively for an aggregate sentence of life in prison with thirty-seven years
and six months of parole ineligibility. The sentencing judge merged the felony
murder charge with the purposeful and knowing murder charge for purposes of
sentencing. Defendant's conviction for unlawful possession of a weapon merged
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with his conviction for first-degree robbery. For the robbery charge, defendant
was sentenced to fifteen years' imprisonment with a seven-and-a-half-year
ineligibility period to run consecutive to the murder sentence.
In November 1989, defendant filed the first of eight petitions for post-
conviction relief (PCR),1 all of which were denied. Our Supreme Court denied
certification as to all eight petitions. Although it is unclear from the record, at
some point defendant also filed a motion to correct an illegal sentence, which
we denied. State v. Cohen, No. A-2599-16 (App. Div. 2018) (slip op. at 3).
On February 28, 2019, defendant again moved to correct what he alleged
to be an illegal sentence. Defendant argued his sentence was illegal for four
reasons: (1) the trial court failed to instruct the jury that "a death caused
purposely or knowingly does not fall under felony murder" and "it was illegal
to convict [him] of both felony murder and purposeful and knowing murder[,]
and to merge the crime of felony murder with . . . purposeful and knowing
murder"; (2) since his "felony murder conviction was dependent on [his]
conviction[s] for intentional murder and . . . first degree robbery[,] . . . all counts
should have merged"; (3) "the jury was not instructed on 'deliberate' or 'willful'
murder and there is no evidence to suggest that [he] deliberately or willfully
1
None of the eight PCR petitions were provided in the record on appeal.
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caused the death of the victim"; and (4) his "sentencing hearing was illegal
because the sentencing court did not convene a second sentencing hearing after
the jury rejected the death penalty."
In a cogent, five-page written decision, the trial court denied defendant's
motion, finding a death caused purposely or knowingly during the commission
of a robbery can constitute felony murder under N.J.S.A. 2C:11-3(a)(3) and
State v. Arriagas, 198 N.J. Super. 575 (App. Div. 1985). As to defendant's
contention that it was illegal to convict him of both purposeful and knowing and
felony murder, the trial court cited N.J.S.A. 2C:1-8(a) and determined
. . . where a defendant causes the death of another
purposefully and knowingly while committing,
attempting to commit, or in flight from the commission
or attempted commission of a robbery, he is guilty of
felony murder as well as purposeful and knowing
murder. Therefore, there are no inconsistencies of fact
required to establish the commission of felony murder
and purposeful and knowing murder. Accordingly,
[defendant was] properly convicted of both felony
murder and purposeful and knowing murder.
Relying upon well-established case law, the trial court noted that the
sentencing court properly merged defendant's felony murder conviction with his
purposeful and knowing murder conviction, citing State v. Brown, 138 N.J. 481(1994), overruled in part by State v. Cooper, 138 N.J. 481 (1997), State v. Russo,
243 N.J. Super. 383 (App. Div. 1990), and State v. Stenson, 174 N.J. Super. 402A-0832-19T3
4
(Law Div. 1980). The trial court concluded "[a]s a result of [defendant's] felony
murder conviction merging with [his] purposeful and knowing murder
conviction, [he] w[as] also properly convicted of the separate offense of robbery,
which does not merge with purposeful and knowing murder."
In addition, the trial court recognized the jury charge included a definition
of "purposely" that was "synonymous with the meaning of the words 'deliberate'
and 'willful.'" "[B]ecause the jury found [defendant] guilty of purposeful and
knowing murder, [the sentencing court] did not make unsupported findings by
stating that [defendant] committed 'the deliberate . . . taking of another person's
life . . . [defendant] willfully took the life of a person. . . .'" As to the sentencing
court not convening a second sentencing hearing after the jury rejected the death
penalty, the trial court noted defendant "provided no objective support for this
assertion." This appeal followed.
On appeal, defendant raises the following issues:
POINT I
THE ILLEGAL SENTENCE MOTION COURT DID
NOT ADDRESS DEFENDANT'S CLAIM THAT
BECAUSE THE JURY WAS ALLOWED/REQUIRED
TO VIEW THE PURPOSELY OR KNOWINGLY
MURDER AND ROBBERY OFFENSES AS ONE
ABERRANT ACT UNDER FELONY MURDER
MEANS DEFENDANT RECEIVED AN ILLEGAL
SENTENCE WHEN THE SENTENCING COURT
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SENTENCED HIM FOR TWO ABERRANT ACTS
INSTEAD OF ONE.
POINT II
BECAUSE THE COURT BELOW AGREED WITH
DEFENDANT'S CLAIM THAT THE PLAIN
LANGUAGE OF THE FELONY MURDER
STATUTE INCLUDES INTENTIONAL MURDER
MEANS DEFENDANT SHOULD HAVE
PREVAILED ON THIS CLAIM THAT ALL
CONVICTIONS SHOULD HAVE MERGED.
POINT III
BECAUSE THE JURY WAS NOT CHARGED WITH
DETERMINING WHETHER DEFENDANT HAD
DELIBERATELY, WILLFULLY TAKEN A LIFE
MEANS THE ILLEGAL SENTENCE MOTION
COURT COMMITTED ERROR BY RULING THAT
THE SENTENCING COURT'S FACTUAL FINDING
THAT THE MAXIMUM SENTENCE ON THE
MURDER CONVICTION WAS WARRANTED
BECAUSE DEFENDANT HAD DELIBERATELY,
WILLFULLY T[AKEN] HIS VICTIM'S LIFE.
POINT IV
IF THE ILLEGAL SENTENCE MOTION COURT'S
RULING IS CORRECT THAT A PURPOSELY OR
KNOWINGLY MURDER COMMITTED DURING A
ROBBERY IS FELONY MURDER THEN MERGER
OF MURDER, ROBBERY AND FELONY MURDER
IS WARRANTED. HOWEVER, IF SAID COURT
[ERRED] IN ITS RULING THEN A CONVICTION
FOR BOTH FELONY MURDER AND MURDER
REPRESENTS AND INCONSISTENT VERDICT IN
VIOLATION OF N.J.S.A. 2C:1-9(a)(3) THAT
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CANNOT STAND, NOTWITHSTANDING MERGER
OF FELONY MURDER INTO MURDER AND
INSTEAD DEFENDANT MUST BE RESENTENCED
ON THE LESSER OF THE TWO OFFENSES.
POINT V
THE ILLEGAL SENTENCE MOTION COURT
COMMITTED ERROR WHEN SAID COURT
RULED DEFENDANT FAILED TO CITE AN
AUTHORITY TO HOW AFTER THE JURY FOUND
AGGRAVATING AND MITIGATING PRESENTED
AT THE DEATH PENALTY HEARING DID NOT
WARRANT THE DEATH PENALTY, A SECOND
AGGRAVATING AND MITIGATING
SENTENCING HEARING [W]AS REQUIRED TO
DETERMINE THE SENTENCE.
In his reply brief, defendant raises these additional points:
POINT I
IF THE APPELLATE COURT AGREES OR
DISAGREES WITH RESPONDENTS' CLAIM THAT
THE PLAIN LANGUAGE OF THE FELONY
MURDER STATUTE DOES NOT REQUIRE THAT
THE ACTOR DID NOT CAUSE THE DEATH OF
THE VICTIM INTENTIONALLY, THEN, MERGER
OF THE MURDER AND ROBBERY CONVICTIONS
INTO FELONY MURDER IS WARRANTED.
POINT II
IF THE APPELLATE COURT AGREES WITH
RESPONDENT OR DEFENDANT THEN MERGER
OF THE MURDER AND ROBBERY OFFENSE INTO
FELONY MURDER IS WARRANTED.
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POINT III
RESPONDENT HA[S] FAILED TO HIGHLIGHT
ANY EVIDENCE TO SHOW THE JURY VERDICT
REFLECTS THE SENTENCING COURT WAS
CORRECT IN ITS FINDING THAT DEFENDANT
HAD DELIBERATELY AND WILLFULLY CAUSED
HIS VICTIM'S DEATH.
POINT IV
IF MURDER AND FELONY MURDER REQUIRES
AN INTENTIONAL AND UNINTENTIONAL
MENTAL STATE, RESPECTIVELY, THEN A
CONVICTION ON BOTH REPRESENTS AN
INCONSISTENT/AMBIGUOUS VERDICT IN
VIOLATION OF N.J.S.A. 2C:1-8(a)(3).
POINT V
RESPONDENT HA[S] FAILED TO CITE ANY
AUTHORITIES TO SUPPORT [ITS] CLAIM THAT
AFTER THE JURY REJECTED THE DEATH
PENALTY, DEFENDANT WAS NOT ENTITLED TO
A SECOND AGGRAVATING AND MITIGATION
FACTOR HEARING PURSUANT TO N.J.S.A. 2C:44-
1(a).
II.
Whether a sentence is illegal is an issue of law that we review de novo.
State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016). "An illegal sentence
that has not been completely served may be corrected at any time without
impinging upon double-jeopardy principles." State v. Austin, 335 N.J. Super.
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486, 494 (App. Div. 2000). Recently, our Supreme Court has reiterated "[t]here
are two categories of illegal sentences: those that exceed the penalties authorized
for a particular offense, and those that are not authorized by law." State v.
Hyland, 238 N.J. 135, 145 (2019) (citing State v. Schubert, 212 N.J. 295, 308
(2012)). These categories "have been 'defined narrowly.'" Ibid. (quoting State
v. Murray, 162 N.J. 240, 246 (2000)). "[E]ven sentences that disregard
controlling case law or rest on an abuse of discretion by the sentencing court are
legal so long as they impose penalties authorized by statute for a particular
offense and include a disposition that is authorized by law." Id. at 146. Under
Rule 3:21-10(b)(5), "an order may be entered at any time . . . correcting a
sentence not authorized by law including the Code of Criminal Justice . . . ."
Defendant's argument is that the felony murder conviction should have
merged into the purposeful and knowing murder conviction. See State v.
Watson, 261 N.J. Super. 169, 181 (App. Div. 1992) (providing that "the felony
murder convictions should have merged into that for purposeful and knowing
murder"). Both offenses, however, carry the same sentence: thirty years to life
with a thirty-year period of parole ineligibility. The order in which the
sentencing court merged the two offenses is therefore irrelevant.
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Under State v. Arenas, 363 N.J. Super. 1 (App. Div. 2003), a defendant
may be found guilty of felony murder when the death of the victim was caused
intentionally. At the time defendant committed the murder, N.J.S.A. 2C:11-
3(a)(3) provided felony murder
is committed when the actor, acting either alone or with
one or more other persons, is engaged in the
commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, sexual
assault, arson, burglary, kidnapping, carjacking,
criminal escape or terrorism . . . and in the course of
such crime or of immediate flight therefrom, any person
causes the death of a person other than one of the
participants; except that in any prosecution under this
subsection, in which the defendant was not the only
participant in the underlying crime . . . .
[1982, c. 111, §1.]
In Arenas, defendant was indicted for purposeful and knowing murder and
felony murder after setting fire to a building, which caused the victim's death.
363 N.J. Super. at 2-3. Defendant argued "because the State's theory was that
he set the fire with the intent of killing [the victim], he could not be found guilty
of felony murder." Id. at 7. We held "[a]lthough 'a wholly unintended killing
is [felony] murder if it results from the commission of the underlying [predicate]
felony[,]' . . . this does not mean that a defendant cannot be found guilty of
felony murder for an intended killing committed in the course of a predicate
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felony." Id. at 7-8 (quoting State v. Darby, 200 N.J. Super. 327, 331 (App. Div.
1984)) (alterations in the original). Moreover, we concluded "[i]f the State's
evidence shows that the defendant . . . intended to kill the victim, the defendant
may be found guilty of both purposeful and felony murder." Id. at 8. And, "it
is common in robbery cases where the victim dies, including by an execution -
style killing, to charge the defendant with both purposeful or knowing murder
and felony murder." Id. at 9. Therefore, there was no error in defendant's felony
murder charge being merged with his purposeful and knowing murder charge,
and the trial court properly denied his motion to correct an illegal sentence.
III.
Defendant next argues the trial court erred by concluding an intentional
murder may constitute felony murder and rejecting his claim that all his
convictions should have merged. Since his conviction for felony murder was
contingent on his convictions for purposeful and knowing murder and first-
degree robbery, "the weapon, robbery, [purposeful and knowing] murder[,] and
felony murder convictions are one crime requiring one punishment/sentence and
not two." Again, we disagree.
In analyzing mergers of convictions, the guiding principle "is that a
defendant who has committed one offense 'cannot be punished as if for two.'"
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Brown, 138 N.J. at 561 (quoting State v. Miller, 108 N.J. 112, 116 (1987)).
"Convictions for lesser-included offenses, offenses that are a necessary
component of the commission of another offense, or offenses that merely offer
an alternative basis for punishing the same criminal conduct will merge." Ibid.N.J.S.A. 2C:1-8 provides for the merger of offenses to avoid impermissible
multiple convictions for the same conduct and sets forth a series of factors to
guide a court in determining whether to bar multiple convictions for conduct
that constitutes more than one offense. In particular, N.J.S.A. 2C:1-8(d)
requires merger when one offense is established by proof of the same or less
than all the facts required to establish the commission of another offense
charged. See State v. Mirault, 92 N.J. 492, 502-03 (1983). The failure to merge
convictions when appropriate results in an illegal sentence. State v. Romero,
191 N.J. 59, 80 (2007).
Here, "[o]nce defendant had been convicted of purposeful and knowing
murder . . . his conviction for felony murder became 'surplusage' because that
offense imposes criminal liability for the homicide committed in the course of a
felony in the event that intent for the homicide cannot be proved." Brown, 138
N.J. at 561; see also Russo, 243 N.J. Super. at 411 (rejecting the defendant's
contention that his robbery conviction should have been merged with his felony
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murder conviction because the defendant was also convicted of purposeful and
knowing murder). The underlying "felony" does not merge into the purposeful
and knowing murder. Russo, 243 N.J. Super. at 411.
At the sentencing hearing, the court found:
with regard to the charges and for the purposes of
sentence, the felony murder will merge into the
conviction of purposeful or knowing murder.
Thereafter the unlawful possession of a weapon . . .
would merge into, nevertheless, the still outstanding
first[-]degree robbery conviction.
....
We have two charges a felony murder and
purposeful murder. To me they merge. Nevertheless,
even though one of the elements of felony murder is
"felony," the more overriding element of that crime is
the homicide.
The first-degree robbery of itself is a separate and
distinct crime which does not succumb any elements of
murder or homicide. That is why I said what I said.
But yet the . . . first-degree robbery is predicated upon
the use of a weapon, which is an unlawful possession
of a weapon. That is how I made that analysis.
We discern no error. The merger of defendant's convictions comported
with Brown and Russo, and the trial court correctly determined that defendant's
felony murder conviction merged into his purposeful and knowing murder
conviction in denying his motion.
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IV.
Defendant also asserts his right to due process of law was violated because
the trial court found the sentence imposed by the sentencing court was not
supported by the jury's findings. According to defendant, "the jury was not
instructed with determining whether the State had proven beyond a reasonable
doubt that defendant had deliberately or wil[l]fully t[aken the] victim's life."
Defendant contends deliberate "means to contemplate or ponder[,]" and "[t]here
was no evidence presented in the record that defendant contemplated or
pondered taking his victim's life."
Defendant also contends willful "implies a persistence[,]" and "there is no
evidence in the record that defendant was persistent or hell bent on taking his
victim's life." As such, defendant argues the imposition of the maximum
sentence based on the sentencing court's finding that defendant deliberately and
willfully took his victim's life constitutes an illegal sentence.
The jury was charged on purposeful and knowing murder as follows:
A person acts purposely with respect to anything that
he may or may not do if it is his conscious objective or
goal to engage in conduct of that nature or to cause such
a result. And a person acts knowingly with respect to
the nature of his conduct or the surrounding
circumstances if that [person] is aware that his or her
conduct is of that nature or such circumstances exist or
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that person is aware of a high probability of their
existence.
....
[A] person acts purposefully if from his or her acts you,
the observer, can determine or [glean] that the person
has done something with a design to achieve something
or resolve to do a particular thing. It's very close to
what you and I, as lay persons, would call intentions.
It's a resolve or determination to achieve a particular
goal. And a person acts knowingly when from the
circumstances surrounding that activity you, the
observer, can determine that the nature of his or her
conduct is such that it implies and signifies that that
person is aware of what she or he is doing. Knowledge
is awareness basically, that’s what it is. Knowledge is
awareness and purpose is the determination to
accomplish a particular objective.
"[E]rroneous instructions on material points are presumed to be reversible
error." State v. Martin, 119 N.J. 2, 15 (1990). Correct charges "are essential for
a fair trial. A charge is a road map to guide the jury and without an appropriate
charge a jury can take a wrong turn in its deliberations. Thus, the court must
explain the controlling legal principles and the questions the jury is to decide."
Ibid. (citations omitted).
We conclude the instructions to the jury were proper and did not produce
an unjust result. R. 2:10-2. At trial, the court instructed the jurors using words
"synonymous with the meaning of the words 'deliberate' and 'willful.'" Thus,
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the evidence supported the jury's verdict of purposeful and knowing murder and
defendant's sentence was crafted in accordance with that finding. Therefore, we
reject defendant's argument that the sentence imposed was not supported by the
jury's findings.
V.
Defendant also asserts that if it is correct "that a purposefully and knowing
murder committed during a robbery is felony murder," then all of his convictions
should be merged. He claims his convictions for both felony murder and
purposeful and knowing murder are inconsistent and illegal. Defendant's
argument lacks merit.
To reiterate, felony murder is not limited to only deaths caused
unintentionally. See Arenas, 363 N.J. Super. at 7-8. Consequently, defendant's
convictions for both felony murder and purposeful and knowing murder are
neither inconsistent nor illegal. Thus, defendant's constitutional rights to a fair
trial and due process were not violated when the sentencing court refused to
merge all of his convictions. The trial court properly denied defendant's motion
on this issue as well.
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VI.
Lastly, we reject defendant's contention that a "second" aggravating and
mitigating factors sentence hearing was required pursuant to N.J.S.A. 2C:44-
1(a) because the jury rejected the death penalty. Defendant fails to cite any
statute, case law, or other legal authority in support of this argument. Our
careful review of the record shows the sentencing court "heard f rom both the
prosecutor and defendant's attorney and considered all of the aggravating and
mitigating factors."
In order to determine an appropriate sentence, the sentencing court must
"undertake[] an examination and weighing of the aggravating and mitigating
factors listed in [N.J.S.A.] 2C:44-1(a) and (b)." State v. Roth, 95 N.J. 334, 359
(1984); State v. Kruse, 105 N.J. 354, 359 (1987). "Aggravating and mitigating
factors are used to [e]nsure that sentencing is individualized without being
arbitrary. The factors [e]nsure that the sentence imposed is tailored to the
individual offender and to the particular crime he or she committed." State v.
Sainz, 107 N.J. 283, 288 (1987). "When the trial court fails to provide a
qualitative analysis of the relevant sentencing factors on the record, an appellate
court may remand for resentencing." State v. Fuentes, 217 N.J. 57, 70 (2014).
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At the sentencing hearing, defendant's counsel argued that the court
should impose "the mandatory minimum only, and not the consecutive sentence
limited to that." In support of his argument, defense counsel presented the
following mitigating factors: (1) defendant, at the time, was only twenty -one
years old; (2) defendant had "a serious problem with alcohol and pills," and was
severely inebriated the night of the crime; (3) defendant had minimal prior
involvement with the criminal justice system; (4) defendant could be
rehabilitated "with alcohol treatment or drug treatment"; and (5) defendant was
remorseful. These mitigating factors, particularly defendant's age, capacity to
rehabilitate, and lack of prior criminal activity were previously presented to the
jury during the death penalty hearing.
Counsel also noted defendant was intelligent despite lacking a high school
education and was not "a bad person, someone that cannot be rehabilitated with
the normal course of events with alcohol treatment or drug treatment." Defense
counsel further stated:
In facing the [thirty]-year mandatory minimum
on the homicide charge, [defendant] is now [twenty-
one] years old. He will be approximately [fifty-one]
years old before he could be eligible to be let out of
prison. That is a long time, a long time for him to come
to be rehabilitated, and a long time to be punished for
this. Another [ten] years, which is the way I calculate
the maximum additional sentence for the robbery
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charge, the mandatory minimum would give him [forty]
years. He would be most eligible, the first eligibility
when he is [sixty-one] years old.
I ask the court whether or not the [ten]-year
difference is needed, to punish him. Is it needed as a
deterrent? Is it needed to give him time to rehabilitate
himself? His life, at least the younger part of his life,
his middle age life, is limited to prison. An additional
[ten] years . . . I think could be used by him, if the parole
authorities saw fit to release him at that time, which it
is not mandatory that he be released, but that would at
least give him an opportunity to demonstrate his
potential intelligence, and use it in a positive way.
During the sentencing hearing, the court also gave defendant the opportunity to
make a statement regarding his sentence, but he declined to do so. The
prosecutor noted at the sentencing hearing that defendant showed no remorse
and "[his] psychiatrist said that in his view [defendant] was a risk to kill again."
Here, the trial court correctly held that defendant had the opportunity to
present mitigating factors at his sentencing hearing. A "second" aggravating
and mitigating factors sentence hearing was not required, and N.J.S.A. 2C:44-1
does not support defendant's contention. Thus, the trial court correctly denied
defendant's motion to correct an illegal sentence.
The remaining arguments advanced by defendant are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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