### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2400- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. C. P ., 1 Defendant-Appellant.

___________________________

Submitted November 8, 2023

– Decided December 15, 2023 Before Judges Sumners and Smith. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95

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- 0915. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Gifford, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Timothy P. Kerrigan, Jr., Chief Assistant Prosecutor, of counsel and on the brief).

1 We employ initials to refer to defendant C.P. as r equired by N.J.S.A. 30:4- 123.51e(e)(4). See also State v. F.E.D. , 251 N.J. 505 , 524 (2022 ). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2400

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PER CURIAM On November 24, 2021, C.P. petitioned the trial cou rt for release pursuant to the Compassionate Release Act (CRA), N.J.S.A. 30 :4-123.51e. C.P. currently suffers from a combination of debilitating medical conditions including, hypertension, hyperlipidemia, chronic kidney diseas e, diabetes mellitus, chronic renal insufficiency requiring dialysis, and gangren e in her right foot. She also had her left leg amputated below the knee and suffe red a recent heart attack. Due to her full-time nursing needs, C.P. currently is living in the infirmary at Edna Mahan Correctional Facility for Women (EMCF). She has served twentyei ght years of a life sentence and is eligible for pa role on March 8, 2025. The trial court rejected C.P.'s petition after a pl enary hearing, finding the presence of certain extraordinary aggravating facto rs warranted denial. C.P. appealed, arguing the trial court abused its discre tion. We agree and find the trial court misapplied the Supreme Court's guiding principles set forth in State v. A.M., 252 N.J. 432 (2023). We therefore reverse and order C.P.'s compassionate release.
I.3 A- 2400

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On May 28, 1997, C.P. pleaded guilty to several cha rges, including the murder of Tara Carter, the murder of her husband A. P., 2 and the attempted murder of Eugene Cooper. Carter, eighteen at the t ime of her death, was living in Paterson with C.P., the mother of her close chil dhood friend. Carter's body was discovered in a park on March 4, 1995. Her aut opsy revealed the cause of death to be blunt force trauma to the head. Once h er body was identified, the police learned that Carter had been living with C.P ., and through further investigation found that C.P. was listed as a benef iciary on a $25,000 life insurance policy in Carter's name. During execution of a search warrant at C.P.'s addr ess, an officer recalled that a stabbing victim, Cooper, had previously resi ded with C.P. When interviewed, Cooper confirmed he was living with C. P. and her family when he was stabbed. He identified his assailant as Charli e Pinchom, C.P.'s daughter's boyfriend, from a photograph. Cooper also said tha t C.P. had asked him to name her as a beneficiary to a life insurance policy, an d that C.P. had solicited him to murder her husband, A.P., but he refused. The sear ch of C.P.'s residence revealed insurance documents related to Cooper.

2 A.P.'s initials are used to more effectively preser ve C.P.'s confidentiality.4 A- 2400

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A.P. died in September 1991 due to mixed drug intox ication involving several anti-anxiety and anti-depressant prescripti on medications. At the time, his death was considered accidental. Police initia ted an investigation into A.P.'s death after interviewing Cooper, and their review o f the toxicology report revealed prescription medications in A.P.'s system which were also prescribed to C.P. Notably, police also learned C.P. had rece ived a life insurance payout for her husband's death. Pinchom confessed to the attempted murder of Cooper and killing Carter and disposing of her body, at the direction of C.P. The police then charged C.P. for Carter's murder, A.P.'s murder, and the attempt ed murder of Cooper, in addition to lesser charges. In 1997, a trial court sentenced C.P. to concurrent life terms with thirty years of parole ineligibility for the murders of A. P. and Carter, and to a consecutive prison term of twenty years for the att empted murder of Cooper. At sentencing, the judge found three aggravating facto rs: (1) the offense was committed in a heinous, cruel, or depraved manner; (2) the risk defendant will commit another crime; and (3) the need to deter def endant and others from violating the law. See N.J.S.A. 2C:44-1(a)(1), (3) , (9).5 A- 2400

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Some twenty-four years later, C.P. filed her compas sionate release petition, resulting in six days of hearings between September 2022 and March 2023. The State presented multiple witnesses in op position to release. C.P. presented testimony from medical professionals and family members. The court considered numerous documents submitted into eviden ce by both sides, including but not limited to letters for and agains t release. Dr. Sandra Braimbridge, the medical director of EMC F and an expert in internal medicine, testified that C.P. required ass isted living "at a minimum," i f not placement in a nursing home. Another expert, C andace Lumax from the New Jersey Department of Health, Division of Aging Services, testified that C.P. would qualify for Medicaid if released, and th at C.P. meets a "nursing facility level of care." Dr. James Cassidy, the su pervisor of mental health at EMCF and an expert in forensic psychology, testifie d concerning C.P.'s mental state, opining that C.P. is mentally stable and pre sents a "very low risk" for committing harm to herself or others, or for commit ting any crimes. Four of C.P.'s family members testified for release: h er daughter and son, as well as two adult granddaughters. C.P.'s propos ed release plan, approved by the New Jersey State Parole Board, involves living with her daughter, a licensed nurse living in Texas who has experience working in the state's prison system.6 A- 2400

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C.P.'s daughter testified that she would support C.P. emot ionally and physically if released. Opposing C.P.'s petition, three witnesses related to murder victim Cart er testified. Rosie Carter, Tara's older sister, spoke about their strong relationship, and their plans to move to Georgia. Tara White, a childhood friend of Carter also testified in opposition to C.P.'s release, sta ting she was upset by the petition. The last witness to testify in opposition was Benic ia Curry, Carter's daughter. Curry testified that she was two years old when he r mother died, and she has no memory of her. She also testified about the emo tional challenge of growing up without her mother. The trial court issued an order denying C.P.'s peti tion, along with a comprehensive statement of reasons. The court foun d by clear and convincing evidence that C.P established both the medical and public safety factors under N.J.S.A. 30:4-123.51e. The court stated:

There is no doubt that C.P. . . suffers from perman ent physical incapacity, as related by the medical witn esses herein. She is dependent on others, on a 24/7 basis, for transfer, locomotion, bathing, dressing, and needs assistance to get to the bathroom. With respect to whether she is a danger to society if released, this court finds that. . . she is not. . . .The7 A- 2400

- 22 AM/Oliver [3] decisions discuss whether the defendant is a "realistic danger" to the public. Realistical ly, I find that she is not. The court took note of C.P.'s good behavior and wor k ethic while in prison and found the parole plan satisfactory. Next, the cour t turned to "whether there are extraordinary aggravating factors, relating to the original offenses." The court found that [F]urther harm to the victims would be intense and that

the aggravating factors surrounding these offenses, two deceased victims and a third seriously injured vict im, the vulnerability of each victim, and the heinous c ruelty involved, particularly as to Tara Carter who was beat en to death with a crowbar, and to Eugene Cooper who w as stabbed repeatedly, strongly mitigates against rele ase. The court rested its decision in part on the manner of the victim's murders, noting "these horrible crimes were committed over a substantial period of time. . . . not . . . on one date under great stress or turmoil," a long with the fact that life insurance policies were taken out on each of the vi ctims by C.P. The court found C.P.'s testimony lacked sincerity, and stated "[c]a ndidly, I am simply unable to draw any strong conclusion as to her alleged remors e. In this court's view, the

3 State v. A.M., 252 N.J. 432 (2023) (companion case , State v. Oliver, 251 N.J. 209 (2022))8 A- 2400

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most compelling testimony was that of Bernicia Curr y, Tara Carter's daughter, and of Rosie Carter, Tara's sister." The court fou nd:

Bernicia's life has been and continues to be profou ndly and grievously affected by both the death of her mo ther and by the horrible manner in which she died. It h as been terrible enough for her to cope while C.P. is serving her prison sentence. This court concludes that releasing C.P. on this petition would cause additio nal profound grief and depression and anger to her. Su ch reaction would, in this court's view, be reasonable and expected. The single issue on appeal is whether the trial cou rt engaged in a proper exercise of discretion when it applied the analytic al framework established by the Supreme Court in A.M., 252 N.J. 432.
II. As background, we briefly examine the CRA and the S upreme Court's application of it in A.M. The Legislature enacted the CRA, which "provides for the release of inmates who suffer from a medical co ndition so severe that they are incapable of committing a crime and, in certain cases, would not pose a threat to public safety if released." Id. at 438. The CR A was designed to replace the prior medical parole law 4 by "outlin[ing] a streamlined process to obtain reli ef." Ibid. Unlike the previous law, the CRA expands eligibilit y to inmates convicted

4 N.J.S.A. 30:4-123.51c (repealed 2020).9 A- 2400

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of certain serious crimes. The new statute shifts the forum for initial consideration of release applications from the paro le board to the courts. Ibid. The CRA "reflect[s] the Legislature's intent to sho w compassion to people with serious medical needs, decrease the prison populati on, and reduce healthcare costs for correctional facilities." Ibid. Procedurally, the inmate must procure a "Certificat e of Eligibility" from the Department of Corrections (DOC), before an inma te may petition for release under the CRA. N.J.S.A. 30:4-123.51e(f)(2). The D OC must "promptly issue" the certificate if two department-assigned physicia ns "determine[] that an inmate is suffering from a terminal condition, dise ase . . . or permanent physical incapacity." N.J.S.A. 30:4-123.51e(d)(2). A "perm anent physical incapacity" is defined as "a medical condition that renders the inmate permanently unable to perform activities of basic daily living, result s in the inmate requiring [twenty-four] hour care[,] and did not exist at the time of sentencing." Ibid. Once in possession of a certificate, an inmate may file a petition with the court and serve notice to the county prosecutor or attorney general, who then must provide notice to the inmate's victims or fami ly of the victim(s) that would be entitled to notice regarding the inmate's parole . N.J.S.A. 30:4-123.51e(e)(2). The victims as well as friends and family of victim s may also testify at the10 A- 2400

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hearing concerning "any harm [they]suffered." Ibid

. Compassionate release "may" be granted only where the court finds by clea r and convincing evidence that the inmate is so debilitated or incapacitated by the terminal condition, disease or syndrome, or permanent physical incapaci ty as to be permanently physically incapable of committing a crime if relea sed. N.J.S.A. 30:4- 123.51e(f)(1). The A.M. Court considered the language of the statu te and determined that "[c]onsistent with the text and history of the statute, trial courts have discretion to decide whether to release an inmate w ho meets the first two requirements." A.M., 252 N.J. at 457. In its reasoning, th e Court noted that the statute's inclusion of the victims, and providing t hem with an opportunity to testify, is instructive in determining the Legislat ure's intent, "[o]therwise, testimony from victims would be little more than a potentially cathartic but hollow exercise. . . ." Id. at 453. The CRA does not spell out factors for a trial cour t to consider, but the A.M. Court spotted this flaw and provided further i nstruction. Id. at 456. The Court concluded that "unless one or more extraordin ary aggravating factors exist," an inmate who satisfies "the Act's medical and public safety criteria should be granted compassionate release." I d. at 460. The Court then provided11 A- 2400

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examples of "extraordinary circumstances" a trial c ourt may consider in determining whether extraordinary aggravating facto rs exist to defeat release. Ibid. The examples included:

(1) particularly heinous, cruel, or depraved conduc t; (2) a particularly vulnerable victim based on the perso n’s advance age, youth, or disability; (3) an attack on the institutions of government or the administration of justice; and (4) whether release would have a particularly detrimental effect on the well-being a nd recovery process of victims and family members. Fo r the fourth factor, courts should apply a standard o f objective reasonableness. [Ibid.] We note the bar for finding extraordinary aggravati ng factors "is a necessarily high one," and that "such factors cannot be used as a substitute for all serious crimes." Id. at 460-61. C.P.'s petition is the first CRA appeal since A.M. was decided.

III. The record shows C.P. demonstrated by clear and co nvincing evidence that she satisfied both the medical and public safe ty requirements. See N.J.S.A.
30:4 -123.51e(f)(1). Mindful that murder always is a "m ost serious" offense, A.M. 252 N.J. at 462, we turn to the trial court's "extraordinary aggravating factor" findings.12 A- 2400

- 22 A. The court found the murders of A.P. and Carter, as well as the assault on Cooper, to be "extraordinarily cruel and vicious," consistent with its conclusion that C.P. engaged in particularly heinous, cruel or d epraved conduct in line with extraordinary aggravating factor one under A.M., I n support of its finding, the court cited the blunt force trauma sustained by Car ter and the repeated stabbing of Cooper. 5 Finally, the court found C.P.'s crimes did not resu lt from "stress or turmoil," but rather were planned crimes which were driven by financial gain, as evidenced by the life insurance policies C.P. pr ocured for all three victims. These facts represent the totality of the trial c ourt's support for its finding that extraordinary aggravating factor one applies to den y release. The court next turned to A.M. extraordinary aggrava ting four, "whether release would have a particularly detrimental effec t on the well-being and recovery process of victims and family members." T he court focused on the testimony of Curry, Rosie Carter, and White in conn ection with Carter's death. We address the witnesses in ascending order of sign ificance to the analysis.

5 We note the court identified Cooper as an autistic victim in its statement of reasons, however we find nothing in the record to s upport this characterization of his medical condition.13 A- 2400

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White, a friend of Carter's, testified that the vic tim was "beloved," and the court acknowledged White's grief as well as that of other friends and relatives who wrote in opposition to release. Rosie Carter t estified that the victim was preparing to relocate to the family home in South C arolina when she was murdered. After hearing Rosie's testimony, the cou rt found she "had suffered grievously and would be profoundly affected and emo tionally harmed by an early release of C.P." The court called Rosie's em otional state "reasonable and expected." The trial court took a longer look at t he impact of Carter's death on her surviving child, Bernicia. It found her "profo undly affected" by her mother's death and concluded, without medical expert testimo ny, that C.P.'s release would cause Bernicia "additional profound grief, de pression, and anger." The trial court acknowledged the ongoing trauma, sense of loss , and pain testified to by Carter's friend, sister, and daughter as they op posed C.P.'s release.
B. We consider the trial court's aggravating factor an alysis in light of the Supreme Court's principles set forth in A.M. First, the facts found by the trial court undoubtedly establish a basis for a finding o f aggravating factor one pursuant to N.J.S.A. 2C:44-1(a)(1). Indeed, the se ntencing court made such a finding in 1995, however that is not the statutory framework we are asked to14 A- 2400

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apply. Instead, we must examine the record throug h the lens of the CRA. The tragic facts present here

— premeditation, blunt force trauma, and monetary gain

— are often present in first-degree murder cases. Th is sad reality in no way diminishes the seriousness of C.P.'s crimes. Howev er, the A.M. Court instructs us that in the context of compassionate release, th e standard for evaluating aggravating factors is "necessarily" higher. We must ask w hether extraordinary aggravating factors exist. A.M. at 460. We cannot conclude that these facts, common to the crime of murder, rise to the level of extraordinary. In our view, characterizing the trial court's findings on this f actor as extraordinary would create "de facto categorical barriers to release," against the guidance of A.M. 252 N.J. at 459- 60. We next turn to consideration of aggravating factor four. The trial court's findings were primarily grounded in the survivors' testimony. It found that C.P.'s release, almost twenty-eight years after her conviction, would cause "intense" further harm "to the victims." Although the trial court did not expressly state it in these terms, its findings ca n be reframed in the language of A.M. this way: it is objectively reasonable to con clude C.P.'s release would have a detrimental effect on the recovery process o f the victims' relatives. We do not agree. Nearly three decades after C.P's con viction and sentencing, we15 A- 2400

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cannot conclude that her compassionate release unde r the statute would have a "particularly detrimental effect" on well-being and recovery. When we consider the harm testified to by Curry and Rosie Carter, we recognize that such harm is an unfortunate byproduc t of the expected trauma that survivors of murder victims will experience. Applying a standard of objective reasonableness, we cannot conclude the su rvivors' testimony, which evoked great pathos during the hearing, rose to the level of an extraordinary aggravating factor. Id. at 460.
C. Recognizing the inherent seriousness of C.P.'s crim es, our application of the principles established by the Court in A.M. lea ds us to conclude "there are no extraordinary aggravating factors that would bar [C.P.'s] release." We are therefore constrained to conclude that the trial co urt engaged in an inappropriate exercise of judicial discretion when it denied C.P. 's compassionate release. Id. at 461. In closing, we note the Court's final words in A.M. 6 are apt:

6 We comment briefly on Oliver, the companion case t o A.M. In Ol iver, the defendant shot and killed a detective in the Essex County courthouse. 252 N.J. at 446. The Supreme Court denied compassionate rel ease to the defendant solely on the ground of extraordinary aggravating factor t hree, an attack on the16 A- 2400

- 22 A.M.'s crime was without question a most serious offense. She deliberately murdered her husband, an d her children offered heartfelt testimony in opposit ion to her release. But the law no longer bars inmates convicted of murder from seeking compassionate release. Although A.M.'s crime is an inherently se rious one, there are no extraordinary aggravating factors that would bar her release. [Id. at 462.] We reach the same result. C.P. met the requirement s under the CRA, and her petition should have been granted. Reversed and remanded to the trial court for entry of a prompt order granting C.P.'s release. In accordance with N.J.S. A. 30:4-123.51e(g), our reversal of the court's order denying C.P.'s petiti on for compassionate release shall not become final for ten days to allow the St ate to petition the Supreme Court for certification or other relief. We note t his matter should be addressed on an accelerated basis. Reversed.

institution of justice. A.M. at 463. The Court considered no other extraordinary aggravating factor in denying release. Ibid.