¶1dissenting.
¶2I voted previously to set aside the capital conviction and sentence of death because of pretrial and mid-trial publicity. State v. Harris, 156 N.J. 122, 211-230, 716 A.2d 458 (1998). The AOC has assigned this case to the D-2 sub-category for non-aggravated sexual assault killings because, in its view, this case does not contain extreme brutality, when viewed in the relative context of other sexual assault killings. The victim was over the age of 14 and suffered only a single fatal wound with no contributing injuries except the second shot that was fired after obtaining the shovel. There are eleven other cases in the D-2 category. Defendant is the only one to get the death penalty. Even prosecu*385tors deem the D-2 eases less deathworthy. Given those facts, I dissent from the Court’s holding and conclude that defendant’s sentence of death was influenced by the pretrial and mid-trial publicity and is, therefore, aberrational. Harvey III, supra, 159 N.J. at 319, 731 A.2d 1121; Cooper II, supra, 159 N.J. at 115, 731 A.2d 1000. I would vacate the sentence of death and remand for a new penalty trial.