NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5304-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FERNANDO CARRERO, JR.,

a/k/a FIPO,

Defendant-Appellant.

_____________________________________________

Argued December 15, 2015 – Decided

Before Judges Yannotti, St. John and 

Guadagno (Judge Guadagno dissenting).

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 

08-10-1706.

Marcia Blum, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, 

attorney; Ms. Blum, of counsel and on the 

brief).

Catherine A. Foddai, Senior Assistant 

Prosecutor, argued the cause for respondent 

(John L. Molinelli, Bergen County 

Prosecutor, attorney; Ms. Foddai, of counsel 

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

June 10, 2016
2 A-5304-12T3

Defendant Fernando Carrero appeals from his conviction 

after a jury trial for, among other counts, first-degree murder. 

Defendant challenges his conviction on numerous grounds, 

including: (1) the denial of his request for a passion/

provocation jury charge; (2) the admission of other-bad-acts 

evidence under N.J.R.E. 404(b); (3) the admission of doublehearsay testimony regarding an alleged conversation between the 

victim and defendant more than a week before the shooting; (4) 

the admission of defendant's physical and spoken responses to 

police inquiries regarding whether any weapons were present at 

the site of his arrest; and (5) the life sentence with a sixtythree-year parole disqualifier. 

I.

The record discloses the following facts and procedural 

history. On December 6, 2007, upon motion by the State, the 

Chancery Division agreed that defendant, a juvenile, would be 

tried as an adult, and waived jurisdiction in favor of the Law 

Division. Subsequently, in late 2008, defendant was charged 

with the first-degree murder of Jose Hall, N.J.S.A. 2C:11-

3(a)(1), (2); second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession 

of a handgun without the requisite permit, N.J.S.A. 2C:39-5(b); 

and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1). 

Between 2009 and 2012, pretrial hearings were conducted,
3 A-5304-12T3

resulting in the admission of (1) the revolver used to murder 

Hall, (2) N.J.R.E. 404(b) evidence regarding defendant's abusive 

and controlling behavior toward his girlfriend, (3) defendant's 

statements to police, (4) defendant's letters written to his 

sister while in custody, and (5) a statement by Hall. A jury 

trial ensued during January and February 2013, and defendant 

testified to his version of the events. 

The trial record discloses the following testimony. K. 

Lowenstein dated C. Hicks for several years, and thereafter 

dated defendant. Hicks had a close friend named Jose Hall and,

through Hicks, Lowenstein met Hall, with whom she became good 

friends. In 2003, after Lowenstein and Hicks broke up, Hicks 

moved into the basement of the three-story house that Lowenstein 

shared with her parents. Though Lowenstein was originally in 

favor of Hicks moving in, hoping that their romantic 

relationship would resume, that relationship did not ensue and

they frequently came into conflict. Her relationship with Hall, 

however, did not change. He was a frequent visitor to the 

Lowenstein home, and was often included in family celebrations.

Lowenstein met defendant in 2005, and began dating him in 

May 2006. At first, the two were happy together, however

defendant became more and more controlling. He forbade her from 

using her phone unless on speaker, seeing her friends, looking 

at other males, or doing anything that he did not say she could 
4 A-5304-12T3

do. Five or six months into their relationship, defendant 

struck Lowenstein.

In mid-July 2007, after a date, Lowenstein dropped 

defendant off at his parents' home in Newark. The next day, 

while driving in Newark with Lowenstein, defendant told her that 

he thought he "saw a car full of guys wearing red bandanas 

waiting outside his house to kill him." Defendant believed that 

both Hicks and Hall were in the car and that Lowenstein had set 

him up. Lowenstein informed defendant that Hall and Hicks were 

in Delaware working at a carnival, noting that the car the two 

had used the night before belonged to Hall. Defendant 

subsequently drove to a side street, parked, and told Lowenstein 

that he was going to ask her if she "set him up." 

Because, as Lowenstein testified, "he knew the answer was 

yes," defendant told her that every time Lowenstein "lied," he 

would punch her. Defendant punched her "about 11 or 12 times" 

on the left side of her temple until a bloodied Lowenstein 

finally answered, "yes it was them." 

In late October 2007, defendant and Lowenstein drove to her 

house to pick up a movie. Hall was at the house that day. 

While Lowenstein went inside, Hall went outside to attempt to 

initiate conversation with defendant. Accounts differ as to the 

conversation. Lowenstein (who did not witness the conversation) 

testified that defendant remained in the car because her mother 
5 A-5304-12T3

"didn't want him and [Hicks] getting into any arguments." Hall 

told her that he offered defendant a sort of "peace treaty," 

telling him that as both he and Hicks had girlfriends, and since 

defendant and Lowenstein loved one another, defendant had 

"nothing to worry about." Hall told Lowenstein that the two 

shook hands and agreed that "everything was going to be okay." 

Defendant offered a different account. He agreed that Hall 

approached him while he was sitting in the car, but denied the

two had a rapprochement. Instead, he claimed Hall simply told 

him to "step out of the car, I want to talk." Defendant replied 

that he did not trust Hall, and rolled up the window. Hall 

persisted until, moments later, Lowenstein came out of the house 

to the car. Hall then smiled at defendant, turned around, and 

left.

Lowenstein recalled that during her relationship with 

defendant, she usually stayed at his parents' home overnight. 

During the week leading up to the shooting, however, defendant 

had been staying with Lowenstein at her parents' home. 

Lowenstein nevertheless had hoped that the situation would soon 

resolve itself, as Hicks, who planned on joining the Army, would 

soon be leaving for basic training. Then Hall would not come as 

frequently to her home.

On the night of the incident, November 6, 2007, Lowenstein 

returned home at about 4:30 p.m. Defendant was already there.
6 A-5304-12T3

Between 6:00 and 6:30 p.m., defendant drove Lowenstein to her 

job in the Willowbrook Mall. Around 11:00 p.m., defendant 

picked Lowenstein up from the mall; at 11:15, they dropped off 

her co-worker and drove to Lyndhurst. During the trip,

Lowenstein's mother called to say that, because Hicks and Hall 

were at the house, she did not want defendant to stay over.

Defendant called his sister to ask if he could spend the night 

with her. When he could not reach his sister, Lowenstein told 

him to continue to her house and try again later. They arrived 

at the Lowenstein home shortly before midnight, and sat down

together in the living room.

Hall, Hicks, and Hicks' girlfriend were in the basement

watching a movie. A few minutes after defendant and Lowenstein 

entered the house, Hicks walked upstairs to get a drink from the 

kitchen refrigerator. According to Lowenstein, Hicks pointedly 

stared at her and defendant before entering the kitchen. When 

he returned to the basement, he informed Hall that defendant and 

Lowenstein were upstairs. Hall did not react, and the three 

continued watching the movie. 

At some point, defendant and Lowenstein moved to the 

kitchen to prepare food. Lowenstein testified that they were 

"kissing and hugging," and she had her hands around his waist. 

Several minutes later, Hall walked upstairs to the kitchen to 

look for food in the refrigerator. Hall asked Lowenstein why 
7 A-5304-12T3

she had not told him that she started working at Victoria's 

Secret. Hall's girlfriend was employed at Victoria's Secret, 

and had previously informed Lowenstein of a job opening at the 

store. Lowenstein responded sarcastically, in an attempt to cut 

their conversation short. She testified, "[she] knew that if 

[she] got in a conversation with him, [defendant] would get 

upset." She also testified that "[Hall] is a ball buster. . . . 

I think he came upstairs to . . . test the waters and see how 

[defendant] felt . . . ." 

In an effort to separate Hall and defendant, Lowenstein 

asked defendant to go upstairs with her. Meanwhile, Hall 

persisted in his questioning. Defendant ordered Hall to stop 

speaking to Lowenstein. Hall said he was just asking her a 

question, but defendant stood up from the table and insisted

that Hall was not allowed to speak with her.

Lowenstein, afraid of a fight between them, left the 

kitchen to find her parents. As she walked toward the stairs, 

she heard Hall yell, "whoa, whoa, whoa," and then the sound of a 

gunshot. She ran back to the kitchen to find Hall on his back 

on the floor, with defendant pointing a gun at him. Lowenstein 

attempted to convince defendant to leave and tried to pull 

defendant's arm away, but defendant fought off her grip. He 

then shot Hall in the head. Lowenstein ran to get her parents.

Defendant gave a different account at trial. He admitted
8 A-5304-12T3

that he had hit Lowenstein in the past, but said he had not done 

so since they broke up and got back together during the summer 

of 2007. Defendant testified that when Lowenstein initially

left the kitchen to find her parents on the night of the 

incident, Hall said, "this is the last time you're going to come 

in this house. And stop talking to [Lowenstein]," then pulled a 

gun from his waistband. Defendant said he grabbed Hall's hand 

and pointed the gun toward Hall, and the gun fired during the 

struggle. According to defendant, Hall fell to his knees, but 

continued to struggle. He testified that Lowenstein then 

reentered the room, screaming, and jumped on his back. During 

the subsequent three-way struggle, the gun again fired, causing 

the wound to Hall's head. On cross-examination, defendant said 

he was afraid of Hicks and Hall for starting trouble whenever 

they were around. 

During the incident, Hicks was in the basement and heard 

yelling and "thumping" noises, then Lowenstein's scream. Hicks 

went to the kitchen and found Hall on the floor bleeding, and 

saw defendant run out the back door, gun in hand.

Police responded and found Hall still alive. EMTs arrived 

but were unable to stop the bleeding. Hall was transported to 

the hospital, where doctors determined the initial gun-shot 

wound to his bladder was non-fatal if treated, but the gun-shot 

wound to his head was fatal, and therefore surgery was not a 
9 A-5304-12T3

realistic option. Hall died several days later and an autopsy 

was performed. 

The Newark Police Fugitive Apprehension Team found 

defendant at a house in Orange. An officer asked him if there 

were weapons in the house. Defendant motioned with his head 

toward a black duffel bag to the right of the couch he was 

sitting on, and the officers discovered a revolver inside the 

bag but left it there after securing defendant and the area.

The officers received written consent to search the area from 

the person renting the apartment, and secured the revolver and 

four rounds of ammunition. When asked by the officers "if 

anything else in the bag was his," defendant responded, "nothing 

but the gun," and a cell phone on the couch. Ballistics 

confirmed the revolver was the weapon used to kill Hall.

Defendant had no permit for the gun.

The jury convicted defendant of all counts. After 

appropriate mergers, the sentencing judge sentenced defendant to 

life imprisonment, subject to an eighty-five-percent parole 

disqualifier on the first-degree murder charge. Lesser 

concurrent sentences were imposed on the other counts. This 

appeal ensued. 

On appeal, defendant presents the following issues for our 

consideration:
10 A-5304-12T3

POINT I

BECAUSE THE COURT REFUSED TO ALLOW FOR 

INCONSISTENT THEORIES AND TO CONSIDER 

EVIDENCE OTHER THAN THAT ADDUCED IN THE 

DEFENSE CASE, IT IMPROPERLY DENIED AN 

INSTRUCTION ON PASSION/PROVOCATION 

MANSLAUGHTER.

POINT II

THE COURT ERRED IN ADMITTING EVIDENCE, ON 

THE GROUND THAT IT WAS AN EXCEPTION TO 

N.J.R.E. 404(b), THAT CARRERO FREQUENTLY

BEAT UP HIS GIRLFRIEND, WHICH HAD NO BEARING 

ON ANY MATTER AT ISSUE AND SERVED NO PURPOSE 

OTHER THAN TO INVITE THE JURY TO INFER THAT 

HE HAS AN AGGRESSIVE DISPOSITION SO AS TO 

UNDERMINE HIS CLAIM THAT HE ACTED IN SELFDEFENSE.

POINT III

THE DOUBLE-HEARSAY TESTIMONY ABOUT WHAT THE 

VICTIM TOLD A WITNESS ABOUT HIS CONVERSATION 

WITH CARRERO CONSTITUTED UNRELIABLE DOUBLE 

HEARSAY AND DID NOT MEET ANY EXCEPTION TO 

THE RULE EXCLUDING HEARSAY.

POINT IV

CARRERO'S STATEMENT ABOUT OWNERSHIP OF THE 

GUN, AND THE GUN ITSELF, SHOULD HAVE BEEN 

EXCLUDED BECAUSE THEY WERE OBTAINED IN 

VIOLATION OF HIS RIGHT TO REMAIN SILENT.

POINT V

SENTENCING A JUVENILE UNDER THE AGE OF 18 TO 

A LIFE TERM, WITH A MINIMUM PAROLE 

DISQUALIFIER OF 63 YEARS AND NINE MONTHS, 

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT, 

PARTICULARLY BECAUSE IT WAS IMPOSED WITHOUT 

ANY CONSIDERATION OF HIS YOUTH. (Not Raised 

Below).
11 A-5304-12T3

Additionally, defendant has filed a pro se brief, in which 

he argues:

POINT I

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL DUE 

TO PROSECUTOR'S INAPPROPRIATE AND LEGALLY 

INCORRECT STATEMENT MADE DURING CLOSING 

ARGUMENTS WHICH ATTRIBUTED TO PROSECUTORS 

MISCONDUCT, AS SUCH MISTRIAL SHOULD HAVE 

BEEN GRANTED. (Partially Raised Below).

POINT II

THE TRIAL COURT DENIED DEFENDANT HIS 

CONSTITUTION [SIC] RIGHT TO CONFRONT THE 

WITNESS AGAINST HIM IN VIOLATION OF THE VI 

AMENDMENT RIGHT OF THE UNITED STATES 

CONSTITUTION AND IMPEDED DEFENDANT FROM 

REVEALING AN AFFIRMATIVE DEFENSE FOR PASSION 

PROVOCATION.

POINT III

DEFENDANT'S CONVICTION IS ILLEGAL DUE TO THE 

WAIVER HEARING AT FAMILY COURT NOT PERFORMED 

IN ACCORDANCE WITH LAW AND DEFENSE 

ATTORNEY'S INEFFECIVE ASSISTANCE IN 

REPRESENTING THE YOUTHFUL DEFENDANT AT SAID 

HEARING WHICH MUST BE CORRECTED. (Not 

Raised Below).

POINT IV

DEFENDANT INCORPORATES BY REFERENCE ALL 

ISSUES RAISED ON DIRECT APPEAL BY BOTH 

DEFENDANT AND COUNSEL AND ASSERTS THAT THE 

CUMULATIVE ERRORS DENIED DEFENDANT A FAIR 

TRIAL.

II.

As noted, defendant argues that the judge erred by refusing 

to instruct the jury on passion/provocation manslaughter, 

N.J.S.A. 2C:11-4(b)(2).
12 A-5304-12T3

"Appropriate and proper charges to a jury are essential for

a fair trial." State v. Daniels, 224 N.J. 168, 180 (2016). 

Where, as here, defense counsel requests a lesser-included 

offense instruction, the standard of review regarding the denial 

of that request requires a plenary consideration of whether "the 

evidence presents a rational basis on which the jury could 

acquit the defendant of the greater charge and convict the 

defendant of the lesser." State v. Brent, 137 N.J. 107, 117 

(1994). The question is not whether the jury is likely to 

accept the defendant's theory, but whether it would have a 

rational basis on which to do so. State v. Mejia, 141 N.J. 475, 

489 (1995). The failure to instruct the jury on a lesserincluded offense that a defendant has requested, and for which 

the evidence provides a rational basis, warrants reversal of a 

defendant's conviction. Brent, supra, 137 N.J. at 118. 

Our Supreme Court has held, "[a] defendant is entitled to 

an instruction on a lesser offense supported by the evidence 

regardless of whether that charge is consistent with the theory 

of the defendant's defense." Ibid. (citations omitted). So 

long as the evidence supporting a lesser-included offense 

"leaves room for dispute," the charge is appropriate. State v. 

Crisantos, 102 N.J. 265, 278 (1986) (quoting State v. Sinclair, 

49 N.J. 525, 542 (1967)). Conversely, if there is not a 

rational basis to support the charge, it should not be given 
13 A-5304-12T3

because it "invites a jury verdict based on sheer speculation or 

compromise." State v. Bishop, 225 N.J. Super. 596, 602 (App. 

Div. 1988). 

In State v. Castagna, we noted, "[t]his 'rational basis'

test has been construed as a low threshold, especially for the 

passion/provocation manslaughter charge. Indeed, if the 

evidence in the record supports an instruction on 

passion/provocation manslaughter, the charge should be given 

whether or not it is consistent with the defense's theory." 

376 N.J. Super. 323, 356 (App. Div. 2005), rev'd on other 

grounds, 187 N.J. 293 (2006) (citations omitted). Moreover, the 

trial judge, when deciding whether to instruct a jury on 

passion/provocation manslaughter, should view the situation in a 

light most favorable to the defendant. State v. Mauricio, 117 

N.J. 402, 412 (1990). Thus, a passion/provocation charge is 

required where "a version, or combination of versions, of the 

evidence, considered in the light most favorable to defendant,"

provides a rational basis upon which a juror might conclude that 

the elements of passion/provocation are met. State v. Taylor, 

350 N.J. Super. 20, 40-41 (App. Div. 2002). 

Furthermore, when a defendant requests a lesser-included 

offense charge, strict adherence to the definition of "included" 

under N.J.S.A. 2C:1-8(d) "is less important . . . than whether 

the evidence presents a rational basis on which the jury could 
14 A-5304-12T3

acquit the defendant of the greater charge and convict the 

defendant of the lesser." Brent, supra, 137 N.J. at 117. Thus, 

"[w]hen a lesser-included offense charge is requested by a 

defendant, . . . the trial court is obligated, in view of 

defendant's interest, to examine the record thoroughly to 

determine if the rational-basis standard has been satisfied." 

Crisantos, supra, 102 N.J. at 278 (citing State v. Powell, 84 

N.J. 305, 318-19 (1980)). 

Passion/provocation manslaughter is defined as a "homicide 

which would otherwise be murder . . . [but] is committed in the 

heat of passion resulting from a reasonable provocation." 

N.J.S.A. 2C:11-4(b)(2). It has four essential elements: "the 

provocation must be adequate; the defendant must not have had 

time to cool off between the provocation and the slaying; the 

provocation must have actually impassioned the defendant; and 

the defendant must not have actually cooled off before the 

slaying." Mauricio, supra, 117 N.J. at 411. "The first two 

elements constitute the objective standard[.]" State v. 

Robinson, 136 N.J. 476, 490 (1994). "The third and fourth 

elements are more subjective because they relate to the 

defendant's actual response." Ibid. "[A] trial court in 

charging a jury . . . must find first that the two objective 

elements of passion/provocation manslaughter are clearly 

indicated by the evidence." Id. at 491. "If they are, the two 
15 A-5304-12T3

subjective elements 'should almost always be left for the 

jury.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 413).

"[T]he judge must determine whether a reasonable factfinder could conclude that the [defendant's] loss of selfcontrol was a reasonable reaction" to the victim's provocation. 

State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001), 

certif. denied, 174 N.J. 38 (2002). The charge should only be 

withheld when "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." Mauricio, supra, 117 N.J. at 412.

In this case, defense counsel requested a passion/

provocation manslaughter charge despite the inconsistency of 

that charge with his assertion that defendant acted in selfdefense, and that the shooting was accidental. Defense counsel 

argued that defendant's own testimony, as well as the testimony 

of other witnesses, supported the charge. In requesting the 

charge, defense counsel reviewed with the court each of the four 

prongs of the passion/provocation model charge and supported his 

argument for inclusion with the testimony of the defendant and 

other witnesses. 

In particular, defendant contended the charge was warranted 

based on the adversarial history between himself and Hall, his

own testimony that, just prior to the shooting, Hall said to him
16 A-5304-12T3

"this is the last time you're going to come in this house. And 

stop talking to [Lowenstein,]" and his testimony that Hall 

initially drew the gun.

Furthermore, defendant was charged with knowingly or 

purposely causing the death of Hall, which was factually 

supported by Lowenstein's testimony. Although defendant 

testified to the contrary, the jury believed the State's 

witnesses and convicted defendant of that charge. As the Court 

recently stated, "by asserting the justification of selfdefense, defendant placed the events immediately before the 

shooting squarely before the jury." State v. Bass, N.J.

___, ___ (2016) (slip op. at 39). Here, the trial court agreed 

to charge self-defense, aggravated, and reckless manslaughter. 

The prosecutor argued that the record did not support 

adequate provocation, stating the law "contemplates an 

acknowledgement by the defendant that there was purposeful 

conduct on his part[,]" and "[b]ecause this defendant clearly 

testified he never had his finger on the trigger[,]" the 

passion/provocation charge was not warranted. The prosecutor 

also contended that, "if we give passion/provocation on these 

facts, it would be hugely misleading to the jury."

The trial court reviewed the facts to determine if there 

was a rational basis for a passion/provocation manslaughter 

instruction. The court concluded, "[i]t's one thing to have 
17 A-5304-12T3

self-defense. It's another to have an accidental shooting. 

It's another thing to say that someone else is responsible";

they're "inconsistent." The court noted the inconsistencies in 

the testimony could lead to jury confusion if the passion/

provocation charge was given, and denied the requested charge.

We disagree with the trial court's conclusion that the 

evidence did not provide a rational basis to support the 

elements necessary for a passion/provocation charge. We 

recognize "[a]dequate provocation is not satisfied by 'words 

alone, no matter how offensive or insulting.'" State v. Docaj, 

407 N.J. Super. 352, 368 (App. Div.), certif. denied, 200 N.J.

370 (2009) (quoting Crisantos, supra, 102 N.J. at 274). 

However, a threat with a gun or a knife may constitute adequate 

provocation. Powell, supra, 84 N.J. at 320. Furthermore, a

battery, except for a light blow, has traditionally been 

considered "almost as a matter of law," to constitute adequate 

provocation. Mauricio, supra, 117 N.J. at 414. In Mauricio, 

the Court concluded that, where defendant had an altercation 

with a bouncer, was later forcibly evicted from a tavern, and 

then shot and killed a person he erroneously believed to be the 

bouncer some fifteen minutes later, a jury could reasonably find 

passion/provocation manslaughter. Id. at 415. 
18 A-5304-12T3

In Crisantos, supra, 102 N.J. at 274, the Court noted the 

common law rule that "mutual combat" can, in certain 

circumstances, give rise to passion/provocation mitigation. 

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. (internal quotation marks omitted). 

We recognize that, "if a person, under color of fighting on 

equal terms, kills the other with a deadly weapon which he used 

from the beginning or concealed on his person from the 

beginning, the homicide constitutes murder." Id. at 274-275 

(citations omitted). However, in this case, the only testimony 

concerning the origin of the weapon used to kill the victim was 

defendant's version, and he stated that the victim brought a 

concealed and loaded handgun to the incident at the home that 

night. 

For provocation to be adequate, it "must be 'sufficient to 

arouse the passions of an ordinary [person] beyond the power of 

his [or her] control.'" Robinson, supra, 136 N.J. at 491

(quoting Mauricio, supra, 117 N.J. at 412). On this score, it 

has been held "that a threat with a gun or knife might 

constitute adequate provocation." Mauricio, supra, 117 N.J. at 

414. See State v. Pasterick, 285 N.J. Super. 607, 614 (App.

Div. 1995); see also Powell, supra, 84 N.J. at 321-22
19 A-5304-12T3

(defendant's statement that the victim attempted to wrestle the 

defendant's gun away from him during an argument sufficiently 

established adequate provocation, even though the defendant had 

previously given a different story to the authorities); State v. 

Bonano, 59 N.J. 515, 523-24 (1971) (holding that a verbal threat 

alone insufficient to reduce the degree of the crime, however, a

menacing gesture with the weapon could properly be considered 

adequate provocation); State v. Blanks, 313 N.J. Super. 55, 72 

(App. Div. 1998) (holding history of belligerence and discovery 

of a long-handled cooking fork on the floor at the victim's 

side, sufficient to suggest that the victim may have brandished 

the fork and further provoke defendant); State v. Vigilante, 257 

N.J. Super. 296, 301-02, 305-06 (App. Div. 1992) (holding prior 

history of abuse, threats to kill, and the fact that the victim 

"bent down to pick up a pipe wrench" all indicated presence of 

reasonable provocation); State v. Pridgen, 245 N.J. Super. 239, 

242-43, 247-48 (App. Div.), certif. denied, 126 N.J. 327 (1991). 

Applying these principles to the case at hand, we are 

satisfied that "a version, or combination of versions, of the 

evidence adduced at trial, considered in the light most 

favorable to defendant," provides a rational basis upon which a 

reasonable jury might make a finding of passion/provocation. 

See Taylor, supra, 350 N.J. Super. at 40. Both defendant and 

Lowenstein testified to the history of conflict between 
20 A-5304-12T3

defendant and the victim and Hicks. By all accounts, a verbal 

dispute took place, followed by a physical struggle between the 

defendant and the victim involving a handgun. The only direct 

testimony regarding the origin of the handgun came from 

defendant, who maintained that Hall brought it upstairs with 

him. 

Our dissenting colleague interprets our opinion as relying

in large part on the acrimonious history between defendant and 

victim, and the verbal dispute preceding the shooting. We 

acknowledge that mere animosity or verbal sparring alone cannot 

support a finding of passion/provocation. We view those facts 

as secondary to the central issue supporting a passion/

provocation charge here: defendant's uncontroverted testimony 

that Hall withdrew the weapon from his waistband and pointed it

at him, thereby threatening him. 

We are cognizant of the Court's recent opinion in State v. 

Funderburg, reaffirming the principle that in considering a sua 

sponte instruction, appellate courts may not "sift[] through the 

cold appellate record and construct[] a hypothetical and 

factually unsupported scenario" in which a jury charge might

conceivably be appropriate. State v. Funderburg, ___ N.J. ___, 

___ (slip op. at 10) (2016). However, this case differs from 

Funderburg in two important respects. First, in Funderburg, the 

defendant argued the trial judge erred by not sua sponte 
21 A-5304-12T3

delivering the jury charge in question. Ibid. Here, the judge 

denied defense counsel's explicit and well-reasoned request for 

the charge. Second, unlike in Funderburg, there is factual

support in the record for a passion/provocation charge based on 

"a version, or combination of versions," of the evidence adduced 

at trial, considered in the light most favorable to defendant.

See Taylor, supra, 350 N.J. Super. at 40. 

The facts supporting passion/provocation in this case are

neither "hypothetical" nor "unsupported." It is undisputed 

that, when Hall entered the kitchen, Lowenstein was "[k]issing 

and hugging" defendant, with her hands "[a]round his waist." A 

verbal dispute ensued between defendant and Hall. At some 

point, a gun was produced, escalating the confrontation. 

According to defendant's uncontroverted testimony, it was Hall 

who produced the gun. 

The trial judge's task is merely to determine whether the 

provocation was adequate as a matter of law, and whether, as a 

matter of law, there was time for the defendant to "cool off." 

Viera, supra, 346 N.J. Super. at 212. If the court determines 

that the provocation was adequate, and the intervening time was 

not too long, then it should provide a passion/provocation jury 

instruction upon request. Ibid.

The combination of testimony in this case compels the 

conclusion that the alleged provocation was adequate, and that 
22 A-5304-12T3

the intervening time was short enough that defendant could still

have been acting under the influence of that provocation when, 

moments later, he shot Hall as he lay wounded on the kitchen 

floor. It is then for the jury to decide whether defendant was 

in fact provoked, and whether his passion in fact cooled before 

he committed the underlying offense. 

In sum, we conclude that the evidence adduced at trial 

provided a rational basis upon which a reasonable jury might 

make a finding of passion/provocation, and the trial judge was 

therefore required to give the requested instruction to the 

jury. Given our determination that it was error to deny 

defendant's request to instruct the jury on the lesser-included 

offense of passion/provocation manslaughter, we need not address 

the remaining arguments raised. 

Reversed and remanded for a new trial consistent with this 

opinion. 
_________________________________________

GUADAGNO, J.A.D. dissenting

Little more than a "scintilla of evidence" supporting a 

charge of passion/provocation manslaughter is required before a 

jury will be given the option of reducing a murder charge to 

that lesser-included offense. State v. Crisantos, 102 N.J. 265, 

278 (1986). Not even a scintilla of evidence supported 

defendant's claim that he was entitled to such a charge. 

Because I believe there was no rational basis to support a 

passion/provocation charge, I respectfully dissent from the 

majority decision, which reverses defendant's conviction.

The State and defendant presented two totally antithetical 

versions of how Jose Hall died on November 7, 2007. The State 

relied on the testimony of K. Lowenstein, who was sitting at her 

parents' kitchen table with defendant when Hall entered the room 

and began a conversation with her. Defendant ordered Lowenstein 

not to talk with Hall, which prompted an argument between 

defendant and Hall. Fearing the argument would escalate, 

Lowenstein left the kitchen to get her parents, who were 

upstairs. As she walked through the living room, but before she 

reached the stairs, Lowenstein heard Hall yell "whoa" three 

times, followed by a gunshot. She turned immediately and ran 

back to the kitchen to find Hall on the floor curled up in a 

ball with his legs and arms up in a defensive position, and 
2 A-5304-12T3

defendant standing over him pointing a gun at his head. 

Ignoring Lowenstein's pleas to let go of the gun and leave the 

house, defendant aimed the gun at Hall, who was writhing on the 

floor, and fired a second shot into his head. No reasonable 

interpretation of the State's version of Hall's killing will 

support a passion/provocation charge.

Defendant's version is equally bereft of either passion or 

provocation and asserts unequivocally that he acted solely in 

self-defense. Defendant claimed that he was kissing Lowenstein 

in the kitchen when Hall entered the room, went to the 

refrigerator for food, and began speaking with Lowenstein. 

Defendant then got up from the table and walked over to Hall. 

Significantly, neither defendant nor Lowenstein testified that 

Hall directed any of his remarks to defendant before defendant 

got up from the table and walked over to Hall. As the majority 

relies on defendant's version to conclude that he was provoked 

by passion, I repeat his testimony:

Q: All right. Now, when you got up, where 

did you go?

[Defendant]: I got up and I walked over 

there to [Hall]. And he walked — he just 

turned around a little bit, about to like 

step towards me. So, we was face to face 

talking to each other.

Q: And how were you talking with each 

other?
3 A-5304-12T3

[Defendant]: I was talking low. He — he 

had a little attitude.

Q: Okay. And when he had that little 

attitude, how did you feel about it.

[Defendant]: We never had a conversation, 

so I felt it — it - there wasn't no need for 

that. I was just letting him know, you 

could tell she didn't want to talk to him. 

So, I was just letting him know, don't talk 

to her.

Q: All right. Where did you see [Lowenstein] 

go?

[Defendant]: When I — when, I got up and I 

was walking [I] seen her, because she was 

cleaning a little place right there. And 

when she — I just seen her from the corner 

of my eye, she was like, "Well, I'm going to 

go get my parents." And she just walked and 

walked out the kitchen.

Q: Okay. And did she leave the room?

[Defendant]: Yeah, I seen her leave the 

room.

Q: Okay. What, if anything, happened when 

she left that room?

[Defendant]: She left the room. José 

looked at me and told me, "[this] is the 

last time you're going to come in this 

house. And stop talking to [Lowenstein]." 

And he pulled out a gun on me.

Q: Where did he pull the gun from?

[Defendant]: From his waistband.

Q: And what did you do?

[Defendant]: I immediately went for it and 

grabbed his hand.
4 A-5304-12T3

. . . . 

Q: When you say, "He pulled it out." What 

did you see him do?

[Defendant]: He just — he reached under 

his shirt and pulled out a gun. I seen the 

gun coming out. And I just went for his 

hand.

Q: When you saw that gun come out, what 

did you do?

[Defendant]: I grabbed his hand.

Q: And what else.

[Defendant]: I tried to — tried to make 

sure he doing point it at me. I was 

pointing it at him, he was trying to point 

it at me.

Q: What happened?

[Defendant]: The gun went off. We were 

struggling — we were struggling and the gun 

went off.

Defendant testified that Lowenstein re-entered the room 

after the first shot and joined the struggle, during which time 

the second shot went off. Defendant's assertion is pure selfdefense. Nothing in defendant's version suggests that he was 

provoked or motivated by passion or emotion. Indeed, there was 

no time for provocation, as defendant claimed he grabbed Hall's 

arm immediately after Hall drew the gun.

Passion/provocation manslaughter in this case is not only 

inconsistent with defendant's testimony, it is also inconsistent 

with the State's version of the homicide, and is unmoored to any 
5 A-5304-12T3

record evidence. As in Crisantos, supra, a jury verdict of 

passion/provocation manslaughter would have required the jury to 

reject both defendant's and the State's versions. 102 N.J. at 

280. Neither version of the shooting supports a theory that 

defendant acted "in a transport of passion . . . induced by an 

adequate provocation." Id. at 281 (alteration in original) 

(quoting State v. Guido, 40 N.J. 191, 209-10 (1963)).

Four elements must be shown to justify a passion/

provocation charge. State v. Mauricio, 117 N.J. 402, 411 

(1990). First, and most importantly, there must be adequate 

provocation. Ibid. The majority relies on Mauricio for the 

proposition that a threat with a gun or knife might constitute 

adequate provocation. In Mauricio, the defendant was thrown out 

of a bar by a bouncer on two occasions before he shot an 

innocent third party, perhaps mistaking the victim for the 

bouncer who had forcibly ejected him earlier that night. Id. at 

408-09. The Court held that the provocation produced by the two 

physical confrontations with the bouncer may have been 

sufficient to cause the passions of a reasonable person to 

become so aroused as to result in loss of self-control. Id. at 

414.

Nowhere in this record is there anything approaching the 

"humiliation at being ejected," which served as the provocation 

in Mauricio. Id. at 415. Accepting defendant's version, the 
6 A-5304-12T3

only possible provocation preceding the shooting came after Hall 

entered the room and began to speak with Lowenstein. It is 

fundamental that words alone do not constitute adequate 

provocation. Crisantos, supra, 102 N.J. at 274. Even if Hall's 

alleged "last time" statement to defendant can be seen as 

"insulting or reproachful," it occurred simultaneously as Hall 

was drawing the gun and does not constitute provocation. See

State v. King, 37 N.J. 285, 301 (1962) (suggesting there must be 

a "time lapse between the utterance of [the alleged insulting 

remarks] and the commission of the homicide").

The second factor requires that the defendant must not have 

had time to cool off between the provocation and the slaying. 

This would negate the effect of the "adversarial history" 

between Hall and defendant, upon which the majority places great 

reliance.

The third element is that the provocation must have 

actually impassioned the defendant. Even accepting defendant's 

version, he grabbed Hall instinctively attempting to defend 

himself. He was not motivated by passion. This is precisely 

the situation where a self-defense instruction is warranted. To 

require a passion/provocation instruction here would be to blur 

the line between provocation and fear, render the self-defense 

instruction superfluous, and confuse the jury. Even under 

defendant's version, there is no basis for a jury to rationally 
7 A-5304-12T3

conclude that he had been provoked to the point of loss of 

control.

While this appeal was pending, the Court decided State v. 

Funderburg, ___ N.J. ___ (2016). Although the majority attempts 

to distinguish Funderburg, the facts are similar. A romantic 

triangle involving a woman, Andrews; her current boyfriend, 

Parham; and her former boyfriend, Funderburg, sparked a 

confrontation which ended with Funderburg stabbing Parham. Id.

at ___ (slip op. at 2). The stabbing was preceded by a "tense 

relationship" between the two men who had "previously exchanged 

angry words." Ibid. After Funderburg took Andrews' car keys, 

he argued with her until Parham intervened. Parham then chased 

Funderburg, who drew a knife and stabbed Parham. Ibid.

A jury found Funderburg guilty, but we reversed because the 

trial judge failed to instruct the jury on the lesser-included 

offense of attempted passion/provocation manslaughter. Id. at 

___ (slip op. at 3). On appeal, Funderburg claimed he was 

entitled to a passion/provocation charge, which he did not 

request at trial. Id. at ___ (slip op. at 3). The Court 

reversed and reinstated Funderburg's conviction, finding "there 

was insufficient evidence in the trial record to indicate that a 

reasonable person in Funderburg's situation would have been 

adequately provoked." Id. at ___ (slip op. at 21).
8 A-5304-12T3

The majority attempts to distinguish Funderburg by noting 

that defendant, here, requested the passion/provocation charge, 

while Funderburg argued the trial judge erred by not delivering 

it sua sponte. However, if Funderburg had been entitled to a 

passion/provocation charge, the Court would not have affirmed 

his conviction under any standard of appellate review. In 

addition, the Court noted that the verbal sparring between 

Funderburg and Parham, which was far more extensive than the 

brief exchange in the kitchen between defendant and Hall, did 

not suggest adequate provocation. Ibid. Significantly, the 

Court noted that even if the jury found the defendant's 

testimony that Parham initially held the knife to be the most 

credible, that "would at most support the theory that Funderburg 

acted in self-defense; it would likely not support a theory that 

Funderburg was actually impassioned and intended to kill 

Parham." Ibid.

Because there was no rational basis to justify a 

passion/provocation charge under the State's proofs or 

defendant's version of the shooting, I respectfully dissent.