SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5010-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH MCCOY,

a/k/a ABDUL M. AKBAR

SALAAM, 

Defendant-Appellant.

_______________________

Submitted April 19, 2021 – Decided June 28, 2021

Before Judges Rothstadt and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 17-06-1173.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Frank M. Gennaro, Designated Counsel, on 

the brief). 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Sarah D. Brigham, Deputy Attorney 

General, of counsel and on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-5010-18

Defendant appeals from his convictions for murder and related firearms 

offenses. The victim, J.H.,

1 was defendant's girlfriend and was fatally shot in 

the apartment they shared in Atlantic City. Defendant was sentenced on the 

murder conviction to a fifty-year prison term subject to the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2. Defendant contends the prosecutor 

committed misconduct by failing to instruct the grand jury that it could consider 

lesser-included homicide offenses. He also contends: the trial judge should 

have suppressed text messages found on the victim's cellphone that the 

prosecutor failed to provide in discovery until the eve of trial; the trial judge 

erred by denying defendant's request to instruct the jury that it could draw an 

adverse inference from the State's failure to call a witness whose statement to 

police was mentioned at the grand jury; the trial judge erred by not instructing 

the petit jury on passion/provocation manslaughter; and the trial judge imposed 

an excessive sentence. After carefully reviewing the record in light of the 

arguments of the parties and the applicable principles of law, we reject these 

contentions and affirm the convictions and sentence.

1 We use initials to protect the privacy of the domestic violence victim and her 

loved ones. N.J.S.A. 2A:82-46; N.J.S.A. 2C:25-19(a)(1).
3 A-5010-18

I.

We briefly recount the procedural history and the facts that are pertinent 

to the issues raised in this appeal. In June 2017, the prosecutor presented 

testimony to an Atlantic County grand jury from Detective Joseph Rauch, who 

had been assigned to investigate the shooting death of J.H. Detective Rauch 

testified that he obtained statements from several individuals whom defendant 

communicated with shortly after the shooting. Those witnesses—Lance Byard, 

Shamirah Dorsey, and Isaiah Seldon—were acquaintances of both defendant and 

J.H. Detective Rauch told the grand jury that defendant admitted to Seldon that 

defendant and J.H. had "got[ten] into a dispute, they were struggling and 

sustained—and the gun went off and she got shot." Defendant asked Seldon for 

transport out of Atlantic City. Seldon declined, telling defendant his vehicle 

"had problems."

Detective Rauch also testified that he took a statement from defendant's 

close friend and confidante, Stella Powell-Nixon, who stated that defendant had 

called her that night upset and crying. Powell-Nixon was able to pick out the 

words "Jackie," "hit," and "shoulder" from defendant's excited utterances. 

Detective Rauch testified that those words corresponded to the injuries J.H.

sustained.
4 A-5010-18

After presenting the detective's testimony, the assistant prosecutor asked 

the grand jury if they had any questions. The grand jurors declined to pose 

questions to the prosecutor and proceeded to return an indictment charging 

defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree 

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and second-degree 

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). The 

grand jury returned a separate indictment charging defendant with seconddegree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1).

Defendant thereafter moved to dismiss the indictment, contending the 

grand jury should have been presented with the option of charging defendant 

with the lesser offenses of aggravated manslaughter, reckless manslaughter, and 

passion/provocation manslaughter. On September 25, 2018, Judge John R. Rauh 

heard oral argument and denied the motion.

The trial was scheduled to start on April 8, 2019 before Judge Donna M. 

Taylor. On that day, the State informed the judge that it had recently been 

notified that police were in possession of J.H.'s cellphone. The police had 

overlooked the cellphone as a source of potential evidence until the State had 
5 A-5010-18

begun its trial preparation.2 According to the explanation of the assistant 

prosecutor assigned to the case, approximately one week before trial, as the State 

was interviewing its witnesses in preparation for trial, one witness (Keturah 

Foster) identified J.H.'s cellphone. Recognizing its inadvertence, the State 

immediately applied for and obtained a communications data warrant (CDW) to 

extract data from the phone. On the afternoon of April 2, 2019, the assistant 

prosecutor received a forensic report that included text messages that were 

stored on the phone. The assistant prosecutor reviewed the records, deemed 

them to be relevant to the case, left a voicemail message for defense counsel that 

evening, and the next day emailed counsel a pdf copy of the text messages. The 

2

 The prosecutor acknowledged at the April 8, 2019 hearing:

I agree [the phone has] been in our possession. Like I 

said, if we had realized the significance at the time it 

would have been investigated further. . . . It's not like 

this was happening by the same detective at the same 

time where this was recognized. So while it was an 

oversight and it's not ideal, it's not any malicious intent 

on the part of the State, and again, I would have loved 

to have had this evidence two years ago. So this is 

something that—it's not just people weren't doing their 

job. The significance of the owner and identity of the 

person using this phone was not realized until 

substantive trial prep[aration], until it was confirmed 

by a witness, again, a witness who will testify in this 

courtroom later this week.
6 A-5010-18

assistant prosecutor also made several unsuccessful attempts to communicate 

with defense counsel by phone, email, and in-person. The assistant prosecutor 

finally spoke with counsel on April 5—the Friday before the Monday scheduled 

trial date—at which time she turned over a CD containing the data that had been 

extracted from the victim's phone. 

At the April 8 hearing, Judge Taylor denied counsel's request to suppress 

the text messages based on their belated production in discovery. Instead, the 

judge granted a one-week continuance to permit defendant and his attorney an 

opportunity to review the material.

On April 15, 2019—the rescheduled date for the start of trial—defendant 

personally objected to the trial commencing, claiming that he had difficulty 

accessing the digital information and insufficient time to review the text 

messages. He also registered his dissatisfaction with his attorney's decision to 

not file a motion for a further continuance. The State refuted defendant's claim 

that he could not access the digital information, noting that it had provided 

defendant with a computer to review the text messages the State intended to 

introduce at trial. The State had also told defendant that it would assist him with 

viewing the material for "as long as the defendant needed." Judge Taylor found 

the State had made the information available to defendant and his counsel. She 
7 A-5010-18

thereupon overruled defendant's personal objection and declined to adjourn the 

trial.

Defendant was tried over the course of five consecutive days, after which 

the jury returned guilty verdicts on the counts charging murder, unlawful 

possession of a handgun, and possession of a firearm for an unlawful purpose. 

Defendant waived his right to a jury trial for the bifurcated certain-persons 

charge. The court held a bench trial on May 30, 2019, finding defendant guilty 

of that offense.

We briefly summarize the evidence the State adduced at trial. 

The State presented four witnesses—Keturah Foster, Lance Byard, 

Shamirah Dorsey, and Isaiah Seldon—who testified as to the acrimonious 

romantic relationship between defendant and the victim. 

Keturah Foster testified she shared an apartment with defendant and 

J.H.—the same apartment in which J.H. was later found dead. Foster claimed 

she observed frequent arguments between defendant and the victim culminating 

in defendant moving out shortly before J.H.'s death. Foster testified the couple 

argued over whether defendant could take the mattress they shared. She heard 

defendant tell the victim: "That's my mattress. You won't have another n**** 

sleep on this mattress."
8 A-5010-18

Foster also testified that at about 11:40 p.m. on the night of J.H.'s death, 

Foster saw defendant's Facebook post depicting "a gun, a box of Newport 

[cigarettes], weed, and a liquor bottle of Amsterdam green apple [vodka]" on 

defendant's lap. Since Foster was not in the apartment at the time, she asked 

J.H. via text message whether defendant was there with her. J.H. confirmed that 

defendant was in the apartment with her.

Lance Byard and Shamirah Dorsey, who lived together, testified they 

received a call from defendant on the night of the murder. They corroborated 

Keturah Foster's account that defendant and J.H. were undergoing relationship 

problems. On the night of the shooting, they were awoken by a call from 

defendant's close friend, Stella Powell-Nixon. Powell-Nixon alerted them that 

defendant had tried calling them to ask for assistance. Byard noted that he had 

a missed call from defendant at 3:06 a.m. Byard and Dorsey arranged for Isaiah 

Seldon to drive them to the victim's apartment. There, they discovered J.H. 

lying unconscious, under the mattress she and defendant had previously shared, 

with a gunshot wound on the side of her abdomen.

Isaiah Seldon testified that after he dropped Byard and Dorsey off at the 

apartment, he parked the car and entered the apartment. He also observed J.H. 

lying under the mattress. Seldon testified he then left the apartment and went to 
9 A-5010-18

defendant's known drug "stash house." There, he encountered defendant 

conferring with Stella Powell-Nixon. Seldon told defendant that he had come 

from the victim's apartment but did not ask defendant what happened. Seldon 

and defendant then "smoked a blunt." Defendant stated to Seldon, "I f***ed up" 

and "I know I did her in." Defendant then asked Seldon for a ride out of Atlantic 

City, but Seldon made up an excuse that his vehicle was inoperable.

The State introduced 114 text messages between defendant and the victim 

spanning from the early afternoon to the night of the murder. Those messages 

showed that defendant was upset that J.H. had a new lover. In a series of text 

messages between 1:46 p.m. to 3:59 p.m., defendant asked for the identity and 

location of J.H.'s new paramour so he could "shoot him in the face," claiming 

that

[J.H.] violated [defendant], so somebody got to pay. 

And since it's not going to be [J.H.], that leaves [the 

other man]. Art of war, when violated one must strike 

with such savagery that those who violated will never 

think to do it again.

The State also played video surveillance footage from a nearby apartment 

complex showing that at 2:52 a.m., a large mattress-shaped object poked out of 

the victim's apartment and was then pulled back inside. The State also presented 

phone records showing that defendant had called 9-1-1 at 3:01 a.m.—hanging 
10 A-5010-18

up after two seconds—and again at 3:13 a.m. Defendant reported an alleged 

robbery and shooting at the victim's apartment, but again hung up when the 9-

1-1 operator asked, "who has the gun."

The court sentenced defendant on the murder conviction to a fifty-year 

state prison term subject to NERA. The trial court merged the conviction for 

unlawful possession of a firearm for an unlawful purpose into the murder 

conviction. The court also imposed an eight-year prison sentence with a fouryear term of parole ineligibility on defendant's conviction for unlawful 

possession of a firearm, and a seven-year prison term with a five-year period of 

parole ineligibility on the conviction for the certain persons offense. The court 

ordered that the sentences imposed on the weapons convictions were to run 

concurrently with each other and the sentence imposed on the murder 

conviction.

Defendant raises the following arguments for our consideration:

POINT I

DEFENDANT'S MOTION TO DISMISS THE 

INDICTMENT WAS IMPROPERLY DENIED.

POINT II

DEFENDANT WAS UNDULY PREJUDICED BY 

THE TRIAL COURT'S DECISION TO PERMIT THE 

STATE TO OFFER EVIDENCE OF TEXT 
11 A-5010-18

MESSAGES IN THE POSSESSION OF THE STATE, 

BUT NOT PROVIDED TO DEFENDANT IN 

DISCOVERY UNTIL THE EVE OF TRIAL.

POINT III

THE TRIAL COURT IMPROPERLY DENIED 

DEFENDANT'S REQUEST FOR AN ADVERSE 

INFERENCE JURY INSTRUCTION DUE TO THE 

STATE'S FAILURE TO CALL STELLA POWELLNIXON AS A WITNESS.

POINT IV

THE TRIAL COURT IMPROPERLY DENIED 

DEFENDANT'S REQUEST TO INSTRUCT THE 

JURY AS TO PASSION/PROVOCATION 

MANSLAUGHTER.

POINT V

DEFENDANT'S SENTENCE OF FIFTY YEARS, 

SUBJECT TO THE NO EARLY RELEASE ACT IS 

MANIFESTLY EXCESSIVE.

II. 

We first address defendant's contention the court erred in denying his 

motion to dismiss the indictment because the prosecutor failed to instruct the 

grand jury on lesser forms of homicide.3

 We begin our analysis by 

3

 The petit jury was instructed on the lesser-included offenses of aggravated 

manslaughter, N.J.S.A. 2C:11-4(a), and reckless manslaughter, N.J.S.A. 2C:11-

4(b)(1). The trial judge declined defendant's request to instruct the petit jury on 

passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). We address 
12 A-5010-18

acknowledging the legal principles governing this appeal. The scope of our 

review is narrow. We review the trial court's determination of a motion to 

dismiss for a clear abuse of discretion. State v. Aloi, 458 N.J. Super. 234, 238 

(App. Div. 2019) (citing State v. Ferguson, 455 N.J. Super. 56, 63 (App. Div. 

2018)). An indictment is presumed valid, see State v. Perry, 124 N.J. 128, 167–

68 (1991), and should not be dismissed unless "manifestly deficient or palpably 

defective," State v. Hogan, 144 N.J. 216, 229 (1996). See also State v. Tringali, 

451 N.J. Super. 18, 27 (App. Div. 2017) ("A trial court should only dismiss an 

indictment on the 'clearest and plainest' grounds and only when it is clearly 

defective.") (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18–19 (1984)). 

Furthermore, "[s]o long as the prosecutor has probable cause to believe 

that the accused committed an offense defined by the statute, the decision 

whether or not to prosecute, and what charge[s] to file or bring before a grand 

jury, generally rests entirely in [the prosecutor's] discretion." Perry, 124 N.J. at

168 (quoting Bordenkicher v. Haye, 434 U.S. 357, 364 (1978)). Moreover, "any 

error in the grand jury proceeding connected with the charging decision [is] 

harmless" in light of a petit jury's subsequent verdict of guilty as charged beyond 

defendant's contention the petit jury should have been instructed on 

passion/provocation manslaughter in Section V, infra. 
13 A-5010-18

a reasonable doubt. United States v. Mechanick, 475 U.S. 66, 70 (1986); State 

v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994).

Importantly for purposes of this appeal, "[a] lesser-included offense . . . 

need not be separately charged in the indictment." Warmbrun, 277 N.J. Super. 

at 60 (quoting State v. Mann, 244 N.J. Super. 622, 628 (App. Div. 1990)). Our 

Supreme Court recently affirmed this principle in State v. Bell, 241 N.J. 552, 

566 (2020). In that case, the Court held:

When the grand jurors' questions, considered in 

context, ask about lesser-included offenses and there is 

a rational basis for instructions on [those] lesserincluded offenses, the better practice for prosecutors is 

to provide them and advise the grand jury that the trial 

court may include instructions on lesser-included 

offenses whether or not the grand jury authorizes them.

[Ibid.]

The Court did not, however, establish a per se rule requiring grand juries to be 

given the option to charge lesser-included offenses. The Court carefully 

examined decisions of other state supreme courts, noting "[t]hose courts have 

generally found no affirmative duty [on the part of the prosecutor] to instruct on 

lesser-included offenses because of the discretion inherent in prosecutors' 

charging decisions." Id. at 563–64 (citing State v. Coconino Cnty. Super. Ct., 

678 P.2d 1386, 1389 (Ariz. 1984); Cummiskey v. Super. Ct., 839 P.2d 1059, 
14 A-5010-18

1062 (Cal. 1992); Oxereok v. State, 611 P.2d 913, 917 (Alaska 1980); 

Commonwealth v. Noble, 707 N.E.2d 819, 822 (Mass. 1999)). The Court agreed 

with those decisions, ultimately concluding "the constitutional protections 

afforded defendants by the grand jury process are not undermined by the failure 

to charge lesser-included offenses." Id. at 565.

We agree with Judge Taylor that in this case, there was no affirmative 

duty for the prosecutor to present lesser-included offenses to the grand jury. 

Importantly, no members of the grand jury ever asked about such charges. In 

these circumstances, the decision to present the grand jury with lesser-included 

offenses rested in the discretion of the prosecutor. We see no abuse of 

prosecutorial discretion here. Nor did the trial judge abuse her discretion in 

denying defendant's motion to dismiss the indictment. We add that even 

assuming for the sake of argument that the grand jury should have been 

presented with the option to indict on types of homicide besides 

knowing/purposeful murder, any such error is harmless in light of the petit jury's 

subsequent guilty verdict on the murder charge after having been instructed on 

the lesser-included offenses of aggravated manslaughter and reckless 

manslaughter. See Mechanick, 475 U.S. at 70; Warmbrun, 277 N.J. Super. at 

60.
15 A-5010-18

III.

We next address defendant's contentions related to the eleventh-hour

discovery of the text messages the State introduced at trial. We begin by 

reaffirming the importance of full and timely discovery. Our Court Rules are 

designed to "assist defendants [in] mount[ing] a complete defense." State v. 

Smith, 224 N.J. 36, 48 (2016). "Rule 3:13-3 entitles defendants to broad 

discovery and imposes an affirmative duty on the State to make timely 

disclosure of relevant information." Ibid. (citing R. 3:13-3(b)(1)). "The rule 

also places a continuing duty on the State to provide discovery." Ibid. (citing 

R. 3:13-3(f)). 

"A trial court's resolution of a discovery issue is entitled to substantial 

deference and will not be overturned absent an abuse of discretion." State v. 

Stein, 225 N.J. 582, 593 (2016). Rule 3:13-3(f) sets forth options for the trial 

court when confronted with a discovery violation. Specifically, the Rule 

provides, 

If at any time during the course of the proceedings it is 

brought to the attention of the court that a party has 

failed to comply with this rule or with an order issued 

pursuant to this rule, it may order such party to permit 

the discovery of materials not previously disclosed, 

grant a continuance or delay during trial, or prohibit the 

party from introducing in evidence the material not 
16 A-5010-18

disclosed, or it may enter such other order as it deems 

appropriate.

As we recently emphasized in State v. Washington, "[a]n adjournment or 

continuance is a preferred remedy where circumstances permit." 453 N.J. Super. 

164, 190 (App. Div. 2018) (quoting State v. Clark, 347 N.J. Super. 497, 509 

(App. Div. 2002)). In contrast, "the sanction of preclusion is a drastic remedy 

and should be applied only after other alternatives are fully explored." Ibid.

(quoting State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994)); accord

Zaccardi v. Becker, 88 N.J. 245, 253 (1982) ("[A]lthough it is the policy of the 

law that discovery rules be complied with, it is also the rule that drastic sanctions 

should be imposed only sparingly.").

In Washington, we explained that when considering the appropriate 

remedy, a court must consider three factors: "(1) the absence of any design to 

mislead, (2) the absence of the element of surprise if the evidence is admitted[,] 

and (3) the absence of prejudice which would result from the admission of 

evidence." 453 N.J. Super. at 191 (citing State v. LaBrutto, 114 N.J. 187, 205 

(1989) and State v. Zola, 112 N.J. 384, 418 (1988)). 

Applying these factors to the case before us, we are convinced that a 

continuance, not suppression, was the appropriate remedy. The record does not 

indicate that the State intended to mislead defendant. This is not a situation 
17 A-5010-18

where the State conducted a forensic analysis of the contents of the victim's 

cellphone and withheld the results. The unexplained error was the failure by the 

State to examine the phone in police possession for evidence of communications 

between the domestic violence victim and defendant, which was made apparent 

only after one witness identified the victim's cellphone during trial preparation. 

This investigative oversight afforded no tactical advantage to the State. To the 

contrary, this gaffe delayed the State from obtaining relevant evidence and not 

just the defense. The record makes clear, moreover, that the prosecutor 

promptly disclosed the text messages to defense counsel once she became aware 

of them. 

As to the element of surprise, the text messages revealed that the romantic 

relationship between defendant and the victim was troubled. That was hardly 

an unexpected revelation. The deteriorated nature of the domestic relationship 

was amply established by other evidence—the testimony of several 

acquaintances—that was disclosed in discovery in a timely fashion. Relatedly, 

defendant suffered no prejudice from the untimely disclosure of the text 

messages. As noted, other testimony presented by the State established that the 

romantic relationship had soured.
18 A-5010-18

Considering all these circumstances, we believe Judge Taylor did not

abuse her discretion in concluding that a continuance was the appropriate 

remedy for the eleventh-hour disclosure of the text messages. We further 

conclude the one-week adjournment was sufficient to allow defense counsel and 

his client to review the text messages and address their introduction at trial. 

Defendant has not articulated how or why the defense response to the 

introduction of the text messages or the outcome of the trial would have been 

different had Judge Taylor granted defendant's personal request for another 

continuance.

IV.

Defendant contends the trial judge erred in refusing to give an adverse 

inference jury instruction—commonly referred to as a Clawans4 charge—when 

the State at trial decided to not call a witness, Stella Powell-Nixon, whose 

hearsay statement had been presented to the grand jury. We conclude Judge 

Taylor did not abuse her discretion in rejecting defendant's request for the 

adverse inference instruction.

During the State's grand jury presentation, a detective related a portion of 

a statement that Powell-Nixon had given to police regarding a phone call she 

4 State v. Clawans, 38 N.J. 162, 170 (1962).
19 A-5010-18

received from defendant after the shooting. She stated that defendant was crying 

and used the words "Jackie," "hit," and "shoulder." The detective testified that 

those words corresponded to the injuries the victim sustained. Defendant argued 

Powell-Nixon's testimony was necessary either to corroborate or contradict 

Isaiah Seldon's testimony that defendant told him "I know I did her in." In 

responding to defendant's motion for a Clawans charge, the prosecutor explained 

that Powell-Nixon had not been cooperative or truthful with the State, and that 

the State was unable to locate her after she gave the statement to the detective 

in 2018.

A party seeking a Clawans charge must first "state the name of the witness 

. . . not called and must set forth the basis for the belief that the witness . . . [has] 

superior knowledge of relevant facts." Washington v. Perez, 219 N.J. 338, 356 

(2014) (alterations in original) (quoting State v. Hill, 199 N.J. 545, 560–61 

(2009)). Secondly, the trial court must determine that an adverse inference 

charge is appropriate in light of its findings with respect to four factors:

(1) that the uncalled witness is peculiarly within the 

control or power of only the one party, or that there is 

a special relationship between the party and the witness 

or the party has superior knowledge of the identity of 

the witness or of the testimony the witness might be 

expected to give; (2) that the witness is available to that 

party both practically and physically; (3) that the 

testimony of the uncalled witness will elucidate 
20 A-5010-18

relevant and critical facts in issue[;] and (4) that such 

testimony appears to be superior to that already utilized 

in respect to the fact to be proven.

[Hill, 199 N.J. at 561–62.]

Defendant has not cited any authority for the proposition that a defendant 

is automatically entitled to a Clawans charge when the State decides not to call 

a witness whose hearsay statement was presented to a grand jury. We therefore

apply the analysis set forth in Hill. 

Judge Taylor found that Powell-Nixon had a special relationship with 

defendant, not the State. The judge also accepted the State's representation that 

it made reasonable but unsuccessful efforts to contact Powell-Nixon after she 

provided her initial statement to police in 2018. More importantly, Judge Taylor 

found that defendant failed to demonstrate that Powell-Nixon's testimony was 

"superior" to that of another witness, Isaiah Seldon, who testified at trial that 

defendant admitted to him the night of the victim's death that he "did her in." 

The judge also accepted the State's representation that Powell-Nixon was 

uncooperative, untruthful, and biased in defendant's favor. We have no basis 

upon which to overturn Judge Taylor's thoughtful and well-articulated findings 

with respect to the relevant factors.
21 A-5010-18

V.

We turn next to defendant's contention the trial judge erred by refusing to 

charge the jury on passion-provocation manslaughter. That crime "occurs when 

a homicide which would otherwise be murder . . . is 'committed in the heat of 

passion resulting from a reasonable provocation.'" State v. Galicia, 210 N.J. 

364, 378–79 (2012) (quoting N.J.S.A. 2C:11-4(b)(2)). "[T]he passion sufficient 

to sustain a passion/provocation manslaughter verdict must disturb a defendant's 

reason," must "deprive[] the killer of the mastery of understanding, [and must 

be] a passion which was acted upon before a time sufficient to permit reason to 

resume its sway had passed." State v. Pitts, 116 N.J. 580, 612 (1989). 

Passion/provocation manslaughter has four elements: "(1) reasonable and 

adequate provocation; (2) no cooling-off time in the period between the 

provocation and the slaying; (3) a defendant who actually was impassioned by 

the provocation; and (4) a defendant who did not cool off before the slaying." 

State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Mauricio, 117 N.J. 402, 

411 (1990)); Galicia, 210 N.J. at 379–80. "The first two criteria are objective, 

the other two subjective. If a slaying does not include all of those elements, the 

offense of passion/provocation manslaughter cannot be demonstrated." 

Mauricio, 117 N.J. at 411.
22 A-5010-18

"As to the first element, the provocation must be sufficient to arouse the 

passions of an ordinary person beyond the power of his or her control." State v. 

Carrero, 229 N.J. 118, 129 (2017) (internal quotation marks omitted) (quoting 

Mauricio, 117 N.J. at 413). "Words alone are insufficient to create adequate 

provocation, but the presence of a gun or knife can satisfy the provocation 

requirement." Ibid. (citations omitted). "With respect to the second element, 

the cooling-off period, we have recognized that 'it is well-nigh impossible to set 

specific guidelines in temporal terms.'" Ibid. (quoting Mauricio, 117 N.J. at 

413). "[I]n a murder prosecution, . . . the State bears the burden of proving the 

inadequacy of any provocation." Mauricio, 117 N.J. at 412 (citing State v. 

Grunow, 102 N.J. 133, 145 (1986)). 

We next consider the general legal principles governing when a trial judge 

should instruct a jury on a lesser offense than the crime for which the defendant 

was indicted. N.J.S.A. 2C:1-8(e) provides, "[t]he court shall not charge the jury 

with respect to an included offense unless there is a rational basis for a verdict 

convicting the defendant of the included offense." An appellate court reviews 

the denial of a defendant's request for a lesser-included offense instruction by 

"determining whether 'the evidence presents a rational basis on which the jury 

could (1) acquit the defendant of the greater charge and (2) convict the defendant 
23 A-5010-18

of the lesser.'" Carrero, 229 N.J. at 128 (2017) (quoting State v. Brent, 137 N.J. 

107, 117 (1994)). "If such a rational basis exists, a trial court's failure to give 

the requested instruction is reversible error." Ibid. 

Our application of these general principles to the circumstances presented 

in the domestic violence case before us is guided by our decisions in State v. 

Darrian, 255 N.J. Super. 435 (App. Div. 1992), and State v. McClain, 248 N.J. 

Super. 409 (App. Div. 1991). In Darrian, we rejected the defendant's argument 

that "the jury could have found from the evidence that he killed the victim in a 

jealous rage after an argument about their relationship led to 'mutual combat.'" 

255 N.J. Super. at 447. Notwithstanding Darrian's statement that he "had argued 

and fought" with the victim before raping and killing her, we noted that the lack 

of evidence of physical combat precluded a finding of sufficient provocation. 

Id. at 448 ("It is generally accepted that words alone, no matter how offensive 

or insulting, do not constitute adequate provocation to reduce murder to 

manslaughter.") (citing Mauricio, 117 N.J. at 413).

Likewise, in McClain, we held that a passion/provocation instruction was 

unavailable to a defendant charged with shooting her lover "because she was 

tired of him 'cheating' on her." McClain, 248 N.J. at 414. In both Darrian and 

McClain, the defendants suspected or knew that their romantic partners had been 
24 A-5010-18

unfaithful. That was not sufficient, however, to justify a passion/provocation 

charge. Rather, we found it dispositive in those cases that "there was an absence 

of either physical abuse or threat of physical harm within any reasonable period 

of time prior to the murder." Ibid. 

As in Darrian and McClain, defendant in the present case expressed 

consternation that the victim slept with another man. Also as in Darrian and 

McClain, there is no evidence of any physical altercation between defendant and 

the victim that might constitute a legally sufficient provocation for him to shoot 

her. Furthermore, the text messages between defendant and the victim spanned 

nearly ten hours from their initial text message exchange at 3:59 p.m. to the 

shooting that occurred around 2:52 a.m. that night. That interval provided more 

than an objectively reasonable amount of time for defendant to "cool off." 

Accordingly, we conclude defendant has not met the first two objective 

prerequisites for a passion/provocation instruction. Judge Taylor therefore 

properly denied defendant's request for that instruction.

VI.

Finally, we address defendant's contention the sentence imposed on his 

murder conviction is excessive. We begin our analysis by emphasizing that our 
25 A-5010-18

role in reviewing a sentence imposed by a trial judge is limited. State v. L.V., 

410 N.J. Super. 90, 107 (App. Div. 2009). We review only

(1) whether the exercise of discretion by the sentencing 

court was based upon findings of fact grounded in 

competent, reasonably credible evidence; (2) whether 

the sentencing court applied the correct legal principles 

in exercising its discretion; and (3) whether the 

application of the facts to the law was such a clear error 

of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. at 493 (citing State v. Roth, 

95 N.J. 334, 363–65 (1984)).]

N.J.S.A. 2C:11-3(b)(1) provides in pertinent part that a defendant 

convicted of murder must be sentenced either to a thirty-year prison sentence 

with a thirty-year period of parole ineligibility, or "to a specific term or years 

which shall be between 30 years and life imprisonment." For purposes of 

calculating parole eligibility, a "life" sentence is equivalent to a custodial term 

of seventy-five years. See State v. Manzie, 168 N.J. 113, 115 (2001) (Stein, 

Coleman, and Zazzali, JJ., concurring). Accordingly, a fifty-year prison term 

falls within the range of sentences that may be imposed on a murder conviction. 

Judge Taylor carefully applied the applicable aggravating and mitigating 

factors. She found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk 

defendant would commit another offense), aggravating factor six, N.J.S.A. 

2C:44-1(a)(6) (the extent of the defendant's criminal history), and aggravating 
26 A-5010-18

factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and 

others from violating the law). She accorded substantial weight to aggravating 

factor three because defendant's "life of crime and unemployment" and 

"escalating" criminal behavior demonstrated he would likely reoffend. She 

accorded significant weight to aggravating factor six because of defendant's long 

history of criminality as both a juvenile and adult. She also accorded substantial 

weight to aggravating factor nine, noting defendant's crime was "call[o]us and 

senseless."

Judge Taylor found that there were no mitigating factors. Although 

defendant argued that the victim's relationship with another man supported a 

finding for mitigating factor three ("[t]he defendant acted under a strong 

provocation"), the judge rejected this argument and noted there was no evidence 

in the record suggesting any such strong provocation. Defendant points to State 

v. Flores, 228 N.J. Super. 586, 591 n.1 (App. Div. 1988), where we recognized 

in dicta the proper exercise of the sentencing judge's discretion in deeming "the 

victim's meretricious relationship with defendant's wife" as sufficiently strong 

provocation to find mitigating factor three. We did not, however, suggest that 

mitigating factor three applies when a person convicted of murdering his onand-off girlfriend becomes upset because she started a romantic relationship 
27 A-5010-18

with another person. We do not believe Judge Taylor abused her discretion in 

declining to find that defendant's jealous rage was provoked for purposes of the 

mitigating factor. Indeed, it would be inconsistent with the undergirding 

purpose of the Protection of Domestic Violence Act (PDVA) to suggest J.H. 

provoked her own demise by starting a new relationship. See N.J.S.A. 2C:25-

18 ("The Legislature finds and declares that domestic violence is a serious crime 

against society; that there are thousands of persons in this State who are 

regularly beaten, tortured[,] and in some cases even killed by their spouses or 

cohabitants . . . ."). 

The judge concluded that "the [a]ggravating [f]actors so clearly and 

substantially outweigh the absence of [m]itigating factors, a sentence beyond 

the mandatory minimum of [thirty] years [for murder was] necessary." We 

agree. The fifty-year term falls within the allowable range of sentences and in 

no way shocks the judicial conscience. Roth, 95 N.J. at 364–65.

Affirmed.