STATE OF NEW JERSEY VS. JOSEPH MCCOY (17-06-1173, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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
 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).

2 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.

3 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 second-

degree 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

4 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.

5 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

6 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."

7 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

8 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

9 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 four-

year 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

10 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 POWELL-
NIXON 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

11 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.

12 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] lesser-
included 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,

13 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.

14 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

15 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

16 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.

17 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 Clawans 4 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).

18 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

19 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.

20 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.

21 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

22 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

23 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

24 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

25 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 on-

and-off girlfriend becomes upset because she started a romantic relationship

26 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.

27 A-5010-18