NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Tried to a jury, defendant Yvonne Walker was convicted of the first-degree murder of eighty-eight-year-old Cassetta Blunt, N.J.S.A. 2C:11-3(a)(1)(2). The jury also found defendant guilty of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

On the murder conviction, defendant was sentenced to a forty-five-year term of imprisonment with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged the weapons convictions with the murder charge and sentenced defendant to a concurrent five-year term on the theft charge.

On appeal, defendant presents three points for our consideration:

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and sentence for murder. However, we reverse the theft by unlawful taking conviction, molding it to a disorderly persons theft offense, and vacating the sentence imposed on that count. We remand for resentencing consistent with this opinion.

I.

Cassetta Blunt lived on the first floor of a two-family home in Irvington, which she owned. She rented the second-floor apartment to a mother and her daughter (neighbors). On the morning of June 15, 2011, Blunt's neighbors left their home to go for a walk in a nearby park. As they were leaving, they saw Blunt at her front door watching a Verizon service technician on a nearby telephone pole. Blunt's phone was not working, and the technician was attempting to address the problem. The neighbors spoke briefly with Blunt as they left the home.

Earlier that morning, the technician had entered Blunt's apartment and placed a device called a toner on her telephone jack. He spoke with Blunt for approximately ten to twenty minutes before going outside to climb the pole. He worked on four or five telephone poles in the vicinity of defendant's home that morning.

While working on one of the poles, the technician was approached by a person he later identified as defendant. Defendant asked him if he was going to be finished soon. Shortly thereafter, the technician saw defendant speaking with Blunt at the front door of Blunt's residence.

The technician finished his work on the telephone poles around 11:00 a.m. and attempted to contact Blunt. Blunt had told him that she was going to leave the door open for him to enter the house when he finished, but when he tried to open the door, it was locked. He returned to his service vehicle and waited for Blunt. While he was waiting in the vehicle, defendant approached him and asked if he had seen Blunt. He responded no.

When the neighbors returned from the park around noon, the technician asked for their help in re-entering Blunt's apartment to retrieve his tools. The neighbors rang Blunt's doorbell and knocked on her door but there was no response. They thought Blunt had gone to pay her taxes and left a note on her door.

The technician went to another job. He returned between 2:00 and 3:00 p.m. and knocked on Blunt's door but there was no response. He returned a third time around 7:00 p.m., but was again unsuccessful in reaching Blunt.

The neighbors left their apartment around 1:00 p.m. for a trip to Atlantic City. They noticed a Meals on Wheels food delivery bag on Blunt's door. When they returned around midnight, the bag was still there and the lights were on inside Blunt's apartment.

Fearing something was wrong, they entered Blunt's home through the back door. After finding Blunt's emptied purse on the floor, they found Blunt's body "laying on her back" with "books and things [covering] her face" and a "knife all the way inside [of] her chest."

After speaking with the neighbors, Essex County investigators obtained a search warrant for defendant's house. During the search, investigators uncovered jewelry and other items belonging to Blunt. Defendant was transported to the Essex County Prosecutor's Office where she waived her Miranda1 rights and gave a recorded statement.

Defendant explained that she had known Blunt for many years, and started working for her within the past year. The work varied but included mowing the lawn and shoveling snow. Defendant went to Blunt's apartment between 7:00 and 9:00 a.m. on June 15, 2011 because Blunt owed defendant $40. They argued and defendant claimed Blunt grabbed a cane and hit her in the lip with it. Defendant claimed she "just snapped" and "blacked out" but recalled grabbing an eight-inch-black-handled knife and stabbing Blunt in the chest. Defendant then placed a pillow over Blunt's face because she did not want to look at Blunt while hurting her. After stabbing Blunt, defendant left through the back door, went over the back fence, and went home. Defendant identified items that she had taken from Blunt's house after stabbing her, including several pieces of jewelry.

Dr. Mirfrida Geller, the medical examiner who performed the autopsy of Blunt's body, testified that Blunt was stabbed eleven times. When Blunt was brought in, the eight-inch knife was still embedded in Blunt's chest. The knife perforated Blunt's right lung and entered her heart through the ascending aorta.

Dr. Geller described several other injuries, including two broken ribs, abrasions around the neck and ears, multiple mandibular fractures, consistent with repeated blunt trauma to the face, and multiple wounds in or around the hands and fingers, consistent with defensive wounds.

Despite these extensive injuries, Dr. Geller opined that Blunt likely did not die instantly but continued to live for a few minutes after the attack.

II.

A.

Defendant first claims violations of her rights to due process and a fair trial by the court's failure to dismiss a deliberating juror (Juror One) for financial hardship.

Juror One worked as an assistant manager at a sushi restaurant. During voir dire, Juror One did not express any concern of financial hardship and otherwise seemed amenable to serving on the jury. The jury was charged and sworn around noon on February 5, 2013 and thereafter began deliberations. At their request, the jurors were allowed to leave for the day at 4:00 p.m. and were told to return the following morning at 9:00 a.m. to resume deliberations.

Sometime before 8:00 a.m. on February 6, 2013, Juror One called the court and left a message saying, in essence, that he was not coming to court because he had to go to work. The trial judge summoned counsel into court to discuss the issue, but before they arrived, Juror One called again and the judge spoke with him. Later, the judge placed his discussion with Juror One on the record:

Soon thereafter, Juror One arrived at the courthouse and resumed deliberations.

Defendant concedes that her failure to object before the trial court requires a plain error analysis, and we will not reverse unless the presumed error is "clearly capable of producing an unjust result." R. 2:10-2.

Rule 1:8-2(d)(1) provides, in relevant part, that the trial court may, in its discretion, "direct the clerk to draw the name of an alternate juror to take the place of the juror" who "dies or is discharged by the court because of illness or other inability to continue[.]" "Rule 1:8-2(d)(1) `delicately balances two important goals: judicial economy and the right to a fair jury trial.'" State v. Ross, 218 N.J. 130, 146 (2014) (quoting State v. Jenkins, 182 N.J. 112, 124 (2004)). The Court cautioned that although the "[s]ubstitution of an alternate juror during deliberation does not in and of itself offend a defendant's constitutional guarantee of a trial by jury[,] . . . sparing use of the rule is counselled." State v. Williams, 171 N.J. 151, 162 (2000).

Bearing this delicate balance in mind, when inquiring about the status of the juror in question, the trial court must focus on two related issues:

In Williams, the Court addressed whether a claim of financial hardship falls within the "inability to continue" standard set forth in Rule 1:8-2(d):

The Court cautioned that if "jury deliberations . . . have progressed to such a point that the new juror would not have a realistic opportunity to share in the deliberative process," a juror should not be dismissed. Id. at 170.

Applying these precepts, several factors support the trial court's decision here. Contrary to defendant's assertion, deliberations had not "barely begun." Prior to Juror One's request for removal, the jury had deliberated for almost half a day after a four-day trial. Although no specific amount of time is dispositive of whether a jury has progressed too far, see id. at 169, the amount of time Juror One spent deliberating is not insignificant or inconsequential.

There is nothing in the record to suggest that Juror One's financial hardship actually prevented him from concentrating on and participating fully in the case. Juror One did not object to the length of the trial or otherwise raise concerns of financial hardship during voir dire. Juror One was told during jury selection that the trial would take four days. According to the judge's recapitulation of the conversation with Juror One on the morning of February 6, 2013, there was no further protest once the judge advised him to report to the courthouse and continue deliberations.

After recounting his conversation with Juror One, the trial judge then observed that he had fully complied Rule 1:8-2(d)(1):

Not only was there no objection to the way the court handled the matter, but defendant's counsel told the judge he agreed with the court's assessment of the Rule. We affirm the court's sound decision to allow the deliberations to continue with Juror One.

B.

Defendant voluntarily absented herself from much of the trial. After jury selection, defendant informed her counsel that "she chooses not to be present at this time." Defendant was present when the court charged the jury and now challenges those instructions regarding her absence during the trial. Specifically, she claims the following charge was improper:

Defendant now claims the court failed to charge the jury separately on her absence from trial but instead referenced her absence during the charge on defendant's election not to testify, rendering the instruction "meaningless and confusing."

In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we consider those defects within the overall context of the charge as a whole. State v. Torres, 183 N.J. 554, 564 (2005). Because defendant did not object at trial, we review the charge for plain error. R. 2:10-2.

While separating the two charges would have been preferable, the trial judge properly informed the jury that defendant had a constitutional right not to be present and that no adverse conclusion should be drawn from her absence. Although the jury was not specifically told to refrain from speculating about the reason for defendant's absence, we are persuaded that the charge given in this case, read as a whole, had no capacity to bring about an unjust result.

C.

Defendant next contends that the trial court erred by failing to specifically instruct the jury to determine the value of the property taken with regard to the lesser-included offense of theft of movable property, N.J.S.A. 2C:20-2(b)(2)(a). As defendant failed to object to the jury instruction, we again analyze her claim of error under a plain error standard. R. 2:10-2.

The grading of theft offenses under N.J.S.A. 2C:20-2(b) is determined, in part, by the dollar value of property taken. Theft constitutes a crime of the second degree if the amount involved is $75,000 or more, third degree if the amount exceeds $500 but is less than $75,000, and fourth degree if the amount involved is at least $200 but does not exceed $500. N.J.S.A. 2C:20-2(b)(1) through (3). Finally, theft constitutes a disorderly persons offense if the amount involved was less than $200. N.J.S.A. 2C:20-2(b)(4)(a).

The amount involved in a theft is an element of the offense required to be determined by the jury. State v. Castaldo, 271 N.J.Super. 254, 258 (App. Div. 1994). The failure to instruct the jury with respect to value is reversible error even if the evidence of price or value is uncontradicted. State v. Ball, 219 N.J.Super. 501, 511 (App. Div. 1987).

The State appears to concede that no proof was presented to the jury as to the value of the property taken, but urges that we affirm under an alternate theory that the property was taken "from the person of the victim" and thus constitutes a third-degree crime under N.J.S.A. 2C:20-2(b)(2)(d). However, this charge was not presented to the jury in the context of the theft charge, and to affirm on this theory would deprive defendant of the right to have an essential element of this crime determined beyond a reasonable doubt by a jury.

Although we are compelled to reverse defendant's conviction and sentence on third-degree theft, we need not remand for a new trial on that charge as all of the elements of the lesser-included disorderly persons offense of theft have been established. "Where there is no evidence of pecuniary loss, for grading purposes it is assumed that the loss was nominal and the offense would be a disorderly persons offense." State v. Clarke, 198 N.J.Super. 219, 226 (App. Div. 1985) (citations omitted). Defendant has been given her day in court, all the elements of the lesser-included offense are contained in the more serious offense, and defendant's guilt of the lesser-included offense is implicit in, and part of, the jury verdict. See State v. Hauser, 147 N.J.Super. 221, 228 (App. Div.) certif. denied, 75 N.J. 27 (1977).

D.

Finally, defendant claims that her sentence is excessive. Her first argument under this point is that the sentencing court erred in finding aggravating factor one, the nature and circumstances of the offense, and the role of the actor therein, including whether or not the offense was committed in an especially heinous, cruel, or depraved manner. N.J.S.A. 2C:44-1(a)(1).

Under factor one, the severity of defendant's crime is the single most important factor. State v. Fuentes, 217 N.J. 57, 74 (2014). The evidence at trial established that, during an argument over $40, defendant stabbed an eighty-eight-year-old woman eleven times in her chest with a kitchen knife, piercing her heart, lung, and aorta and breaking two ribs. The victim also suffered wounds to her neck and ears, possibly inflicted by a different knife, as well as repeated blunt trauma to her face causing multiple fractures.

Defendant's argument that "the nature and circumstances of this offense were not especially heinous, cruel or depraved" is so utterly devoid of merit that we need not address it further. R. 2:11-3(e)(2).

We also reject defendant's argument that the court double-counted when it referenced the victim's advanced age in finding aggravating factors two, N.J.S.A. 2C:44-1(a)(2), and twelve, N.J.S.A. 2C:44-1(a)(12). Factor two directs the sentencing court to consider

Factor twelve applies if the defendant committed the offense against a person whom he knew or should have known was sixty years of age or older, or disabled. N.J.S.A. 2C:44-1(a)(12). Factor twelve is triggered solely by a victim's age, without any additional proof, while factor two requires proof that a victim was particularly vulnerable or incapable of resistance. In applying factor twelve, the court noted the discrepancy in the respective ages of defendant and Blunt and the proof of Blunt's disability including her use of a cane to walk. We are satisfied that the court identified sufficient credible evidence in the record to support the imposition of both factors and did not engage in double counting. See State v. Washington, 408 N.J.Super. 564, 581 (App. Div. 2009) (no double-counting occurred where court's finding of factor two was not based primarily upon the victims age but rather upon the "parasitic" nature of defendant's conduct).

Defendant's remaining challenges to her sentence, including her claim that she "acted under a strong provocation" when she killed Blunt, lack sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).

Defendant's convictions and sentences on counts two (murder), four (weapon), and five (weapon) are affirmed. The conviction on count three, third-degree theft by unlawful taking, is reversed and molded to a disorderly persons theft offense under N.J.S.A. 2C:17-3(b), and remanded for resentencing on that count.