A-13-16 State v. Fernando Carrero, Jr. (078071) (Bergen County and Statewide) , 229 N.J. 118 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Fernando Carrero, Jr. (A-13-16) (078071)
Argued October 13, 2017 -- Decided May 22, 2017
Timpone, J., writing for a unanimous Court.
In this appeal, the Court considers the propriety of a passion/provocation manslaughter jury instruction.
On November 6, 2007, Jose Hall was shot twice at Kerrilyn Lowenstein’s house in Lyndhurst, where she
lived with her parents. At the time of the shooting, seventeen-year-old Lowenstein was dating defendant Fernando
Carrero, Jr., who was sixteen. Before dating defendant, Lowenstein had dated Hall’s close friend, Corey Hicks. In
2003, after Lowenstein and Hicks ended their relationship, Hicks moved into the basement of Lowenstein’s house.
According to Lowenstein, defendant specifically told her that he did not want her speaking to Hicks or Hall, despite
her repeated protestations that she had no romantic feelings for either of them.
In the week leading up to the shooting, defendant stayed overnight at Lowenstein’s house. On the date of
the shooting, Lowenstein’s mother told her that defendant could not stay at the house that night because Hicks and
Hall would be there. Defendant called his sister to ask if he could stay with her, but she did not answer. Lowenstein
and defendant went to Lowenstein’s house, planning to try to reach his sister again later on. While they were sitting
at the kitchen table, Hall came up from the basement. He asked Lowenstein why she had not told him that she had
secured a job. Defendant asserted that he told Hall to stop speaking to Lowenstein.
Lowenstein testified that she was fearful of an impending fight between defendant and Hall, so she left the
kitchen to get her parents. While she was out of the kitchen but near the stairs, Lowenstein indicated that she heard
Hall yell, “whoa, whoa, whoa,” followed by the sound of a gunshot. She ran back to the kitchen and saw Hall lying
on his back with defendant standing over him, pointing a gun at him. Hall was lying in a defensive position saying,
“whoa stop, whoa stop.” Lowenstein stated that she pleaded with defendant to “just leave.” When he did not
respond, she attempted to pull defendant’s arm away, but he fought off her grip. Lowenstein testified that defendant
then shot Hall in the head.
Defendant’s version of the shooting differed. He testified that, after Lowenstein left the kitchen to find her
parents, Hall told him “this is the last time you’re going to come in this house. And stop talking to [Lowenstein].”
Hall then reached under his shirt and pulled a gun from his waistband. Defendant tried to grab the gun from Hall
and the gun went off during the struggle. After the first shot, Hall fell to his knees but continued to struggle.
Lowenstein reentered the room and jumped on defendant’s back. During the three-way struggle for the gun, the gun
fired while aimed at Hall’s head.
Hicks, who was in the basement at the time of the shooting, testified that he ran upstairs after hearing
yelling and “thumping” noises. When he got to the kitchen, he found Hall on the floor bleeding and saw defendant
run out the back door with the gun in hand. Hall died two days later in the hospital. Defendant was arrested the
morning after the shooting.
A Bergen County grand jury returned an indictment, charging defendant with first-degree murder; second-
degree possession of a weapon for an unlawful purpose; third-degree possession of a handgun without the requisite
permit; and third-degree hindering apprehension.
At the close of evidence, defendant requested an instruction on passion/provocation manslaughter as a
lesser-included offense of murder. The court denied the request. The jury subsequently found defendant guilty on
all counts.
1
In a split opinion, a majority of the Appellate Division reversed defendant’s conviction, concluding that,
when considered in the light most favorable to defendant, the evidence adduced at trial “provide[d] a rational basis
upon which a reasonable jury might make a finding of passion/provocation.” The majority found defendant’s
testimony that Hall drew a weapon and pointed it at him supported a passion/provocation charge. A dissenting panel
member concluded that there was no evidence to support a passion/provocation charge and that a
passion/provocation manslaughter verdict “would have required the jury to reject both defendant’s and the State’s
versions” of events. The State appealed to this Court as of right. R. 2:2-1(a) (2).
HELD: The trial testimony presents a rational basis on which the jury could acquit defendant of murder but convict
him of passion/provocation manslaughter. Although the passion/provocation charge is inconsistent with defendant’s
theories of self-defense and accidental shooting, when the evidence supports such a charge, a defendant may be entitled
to the requested instruction regardless of whether the charge is consistent with the defense.
1. As a threshold matter, the Court rejects the assertion that State v. Funderburg, 225 N.J. 66, 81 (2016), is
controlling here. That case addressed the failure to provide sua sponte a passion/provocation manslaughter charge.
The Court decided Funderburg under a “clearly indicated” standard of review because it involved an alleged failure
to provide a sua sponte instruction—the trial court had the obligation to give the instruction only if the evidence
“clearly indicated” the objective elements of the offense. Id. at 82. Here, the rational-basis test applies to review the
trial court’s failure to provide an instruction when defendant requested it. (p. 10-11)
2. When a defendant requests a jury instruction on a lesser-included offense and is denied the requested instruction,
an appellate court reviews the denial of that request, 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 of the lesser. If
such a rational basis exists, a trial court’s failure to give the requested instruction is reversible error. A defendant is
entitled to a lesser-included offense instruction rationally supported by the evidence, even if the instruction is
inconsistent with the defense theory. (pp. 11-12)
3. Passion/provocation manslaughter is a well-established lesser-included offense of murder with four essential
elements: (1) the provocation must be adequate; (2) the defendant must not have had time to cool off between the
provocation and the slaying; (3) the provocation must have actually impassioned the defendant; and (4) the
defendant must not have actually cooled off before the slaying. The first two elements are assessed objectively,
while the third and fourth are more subjective because they relate to the defendant’s actual response. To warrant the
passion/provocation jury charge, the evidence must rationally support only the first two elements; the subjective
elements should usually be left to the jury to determine. (pp. 12-13)
4. As to the first element, the presence of a gun or knife can satisfy the provocation requirement. Battery is also
considered adequate provocation almost as a matter of law. With respect to the second element, the Court found in
State v. Robinson, 136 N.J. 476, 492 (1994), that a reasonable person in the defendant’s position “might not have
had time to cool down between the provocation and the retaliation” where the defendant shot his uncle “almost
immediately” after being provoked. (p. 14)
5. Here, a reasonable jury, viewing the evidence in the light most favorable to defendant, could believe that Hall
was the first one to pull out the gun. Even if Hall did not draw the weapon, the physical struggle between Hall and
defendant constituted a battery, which rises to the level of adequate provocation. There was a rational basis for a
jury to find that the provocation was objectively adequate. The evidence also provides a rational basis on which to
conclude there was no cooling-off period between the provocation and the shooting. (pp. 14-16)
6. Those determinations provide a sufficient basis to have warranted a passion/provocation manslaughter
instruction. The instruction should have been provided as requested. The remaining elements—whether defendant
was in fact provoked and whether he in fact cooled off—are left to the jury. (p. 16)
The judgment of the Appellate Division is AFFIRMED, and the matter is remanded to the trial court for
further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-13 September Term 2016
078071
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FERNANDO CARRERO, JR. (a/k/a
FIPO),
Defendant-Respondent.
Argued March 13, 2017 – Decided May 22, 2017
On appeal from the Superior Court, Appellate
Division.
Danielle R. Grootenboer, Senior Assistant
Prosecutor, argued the cause for appellant
(Gurbir S. Grewal, Bergen County Prosecutor,
attorney; Catherine A. Foddai, Special
Deputy Attorney General/Acting Senior
Assistant Prosecutor, of counsel and on the
brief).
Marcia H. Blum, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
JUSTICE TIMPONE delivered the opinion of the Court.
In this appeal as of right, we consider the propriety of a
passion/provocation manslaughter jury instruction.
Defendant Fernando Carrero, Jr., was charged with the
murder of Jose Hall. Defendant’s account of the shooting
differed substantially from that of Kerrilyn Lowenstein,
1
defendant’s girlfriend, who witnessed a significant part of the
event. At trial, defense counsel requested a
passion/provocation manslaughter instruction, but the trial
court denied the request, finding it inconsistent with
defendant’s own accounts of self-defense and accidental
shooting. The jury convicted defendant of first-degree murder.
The majority of an Appellate Division panel reversed the
murder conviction, finding that the trial court improperly
declined to charge the jury on passion/provocation manslaughter.
One panel member dissented, concluding that neither the State’s
nor the defense’s presentation of the facts supported such a
charge.
We find that the trial testimony presents a rational basis
on which the jury could acquit defendant of murder but convict
him of passion/provocation manslaughter, and accordingly we
affirm. Although the passion/provocation charge is inconsistent
with defendant’s theories of self-defense and accidental
shooting, when the evidence supports such a charge, a defendant
may be entitled to the requested instruction regardless of
whether the charge is consistent with the defense. State v.
Brent, 137 N.J. 107, 118 (1994).
I.
We cull the following facts from the trial testimony. On
November 6, 2007, Jose Hall was shot twice at Lowenstein’s
2
parents’ house in Lyndhurst, where Lowenstein lived. At the
time of the shooting, seventeen-year-old Lowenstein was dating
defendant, who was sixteen.
Before dating defendant, Lowenstein had dated Hall’s close
friend, Corey Hicks. In 2003, after Lowenstein and Hicks ended
their relationship, Hicks moved into the basement of
Lowenstein’s house. Lowenstein testified that she had hoped
that their romantic relationship would rekindle, but that hope
was unrequited. Instead, Lowenstein indicated that she and
Hicks “started to hate each other. It was more like brother and
sister; we would fight like brother and sister. He would have
girls over, I would have guys and friends over, and we just
fought all the time.” Lowenstein’s relationship with Hall
remained stable, however; he was a frequent visitor to
Lowenstein’s home and was included in family celebrations.
Lowenstein began dating defendant in May 2006. Lowenstein
asserted that approximately six months into the relationship,
defendant began to verbally and physically abuse her. According
to Lowenstein, defendant forbade her from seeing her friends and
looking at other men, prohibited her from using her cell phone
in his presence unless it was on speaker, and prevented her from
doing anything else without his permission. Defendant
specifically told Lowenstein that he did not want her speaking
3
to Hicks or Hall, despite her repeated protestations that she
had no romantic feelings for either of them.
Defendant persisted. Lowenstein testified about an
incident that took place in July 2007, when defendant claimed
that he “saw a car full of guys wearing red bandanas waiting
outside his house to kill him.” Defendant said that he thought
Hicks and Hall were in the car and that Lowenstein had set him
up. When Lowenstein explained that Hicks and Hall were in
Delaware, defendant refused to believe her. To force her to
confess to her part in the scheme, defendant repeatedly asked
Lowenstein to admit to her role, and each time she did not, he
punched her in her left temple. Lowenstein stated that this
interrogation continued for at least eleven punches until she
could not handle the beating any longer and felt forced to say
“yes.”
In another incident that took place in October 2007,
defendant waited in a car outside Lowenstein’s house while she
went inside to retrieve a movie. Hall told Lowenstein that he
ventured outside to “make a peace treaty” with defendant and
that the two shook hands, agreeing that “everything was going to
be okay.” Defendant disputed that account, stating that Hall
approached the car and told defendant to get out so they could
talk. Defendant said he refused to get out because he was
afraid of Hall. Defendant added that Hall was arguing with him,
4
that they never shook hands, and that as soon as Lowenstein came
out of the house, Hall turned around and left.
Defendant described another argument with Hall and Hicks
that occurred behind Lowenstein’s house one evening. He
explained that the argument was on the verge of getting
physical, with Hall stating that he was “coming after”
defendant, when Lowenstein’s sister’s boyfriend intervened.
In the week leading up to the shooting, defendant stayed
overnight at Lowenstein’s house. On the date of the shooting,
Lowenstein’s mother told her that defendant could not stay at
the house that night because Hicks and Hall would be there.
Defendant called his sister to ask if he could stay with her,
but she did not answer. Lowenstein and defendant went to
Lowenstein’s house, planning to try to reach his sister again
later on.
Upon arriving at Lowenstein’s house, Lowenstein and
defendant sat together in the living room. Hicks came up from
the basement, where he had been watching a movie with his
girlfriend and Hall. According to Lowenstein, Hicks stared at
her and defendant before going into the kitchen. When Hicks
returned to the basement, he informed Hall that defendant and
Lowenstein were upstairs.
Defendant and Lowenstein went into the kitchen for food.
Lowenstein testified that they were “kissing and hugging,” and
5
she had her hands around his waist. While they were sitting at
the kitchen table, Hall came up from the basement. He asked
Lowenstein why she had not told him that, as a result of his
girlfriend’s tip about a job opening, she had secured a job at a
Victoria’s Secret store. Defendant asserted that he told Hall
to stop speaking to Lowenstein.
Lowenstein testified that she was fearful of an impending
fight between defendant and Hall, so she left the kitchen to get
her parents. While she was out of the kitchen but near the
stairs, Lowenstein indicated that she heard Hall yell, “whoa,
whoa, whoa,” followed by the sound of a gunshot. She ran back
to the kitchen and saw Hall lying on his back with defendant
standing over him, pointing a gun at him. Hall was lying in a
defensive position saying, “whoa stop, whoa stop.” Lowenstein
stated that she pleaded with defendant to “just leave.” When he
did not respond, she attempted to pull defendant’s arm away, but
he fought off her grip. Lowenstein testified that defendant
then shot Hall in the head.
Defendant’s version of the shooting differed. He testified
that, after Lowenstein left the kitchen to find her parents,
Hall told him “this is the last time you’re going to come in
this house. And stop talking to [Lowenstein].” Hall then
reached under his shirt and pulled a gun from his waistband.
Defendant tried to grab the gun from Hall and the gun went off
6
during the struggle. After the first shot, Hall fell to his
knees but continued to struggle. Lowenstein reentered the room
and jumped on defendant’s back. During the three-way struggle
for the gun, the gun fired while aimed at Hall’s head.
Hicks, who was in the basement at the time of the shooting,
testified that he ran upstairs after hearing yelling and
“thumping” noises. When he got to the kitchen, he found Hall on
the floor bleeding and saw defendant run out the back door with
the gun in hand.
Hall was still alive when EMTs arrived at the house. They
determined that the initial gunshot wound was not fatal, but the
second wound to his head was untreatable. Hall died two days
later in the hospital.
Defendant was arrested the morning after the shooting at a
house in Orange. Officers recovered the gun from a black duffel
bag in the home. When officers asked defendant “if anything
else in the bag was his,” defendant replied, “nothing but the
gun.” Officers later confirmed that defendant did not have a
permit for the gun.
A Bergen County grand jury returned an indictment, charging
defendant with first-degree murder, 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
7
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).
At the close of evidence, defendant requested an
instruction on passion/provocation manslaughter as a lesser-
included offense of murder. Defense counsel argued that Hall’s
“assault” of defendant by pulling a gun on him was sufficient
evidence of provocation. The State objected to the request,
contending that there was no evidence that defendant had been
provoked. The court denied the request, noting that the
evidence of self-defense and accidental shooting were
inconsistent with passion/provocation manslaughter. The jury
subsequently found defendant guilty on all counts. After
applicable mergers, the sentencing judge sentenced defendant to
life imprisonment, subject to an eighty-five percent parole
disqualifier on the first-degree murder charge, and lesser
concurrent sentences on the other counts.
In a split opinion, a majority of the Appellate Division
reversed defendant’s conviction, concluding that, when
considered in the light most favorable to defendant, the
evidence adduced at trial “provide[d] a rational basis upon
which a reasonable jury might make a finding of
passion/provocation.” The majority found defendant’s testimony
that Hall drew a weapon and pointed it at him supported a
passion/provocation charge.
8
A dissenting panel member concluded that there was no
evidence to support a passion/provocation charge and that a
passion/provocation manslaughter verdict “would have required
the jury to reject both defendant’s and the State’s versions” of
events.
The State appealed to this Court as of right. R. 2:2-1(a)
(2).
II.
A.
The State agrees with the dissent that a
passion/provocation manslaughter instruction was not warranted
because the evidence “bespoke self-defense instead of passion
provocation.” The State notes that the failure to charge on
passion/provocation did not eliminate the possibility of a
conviction of a lesser offense because the jury was instructed
on self-defense, as well as aggravated manslaughter and reckless
manslaughter.
B.
Defendant asserts the appellate majority properly found
that the trial court erred in denying his request for a
passion/provocation charge. Relying on State v. Mauricio, 117
N.J. 402, 414 (1990), which acknowledged that a threat with a
deadly weapon may be adequate provocation, defendant claims that
9
the dissent improperly failed to consider defendant’s testimony
that “the victim threatened him with a gun.”
In response to the Appellate Division dissent’s argument
that this case is governed by this Court’s decision in State v.
Funderburg, 225 N.J. 66, 81 (2016), where we held that appellate
courts may not construct hypothetical scenarios unsupported by
evidence when determining whether a jury charge is appropriate,
defendant posits that this case is distinguishable “on both the
facts and the law.” Specifically, defendant argues that
Funderburg involved a sua sponte jury charge, which is governed
by a different standard than jury charges requested by a
defendant.
III.
“Appropriate and proper charges to a jury are essential for
a fair trial,” State v. Daniels, 224 N.J. 168, 180 (2016), and
we have repeatedly held that “erroneous instructions on material
points are presumed to be reversible error,” State v. Nelson,
173 N.J. 417, 446 (2002) (quoting State v. Martin, 119 N.J. 2,
15 (1990)).
A.
As a threshold matter, we reject the assertion that
Funderburg is controlling here. Rather, we view this decision
as consistent with, but distinguishable from, Funderburg. In
that case, we addressed the trial court’s failure to provide sua
10
sponte a passion/provocation manslaughter charge when the
defendant did not request the instruction. Id. at 70. The
defendant in Funderburg was charged with the attempted murder of
his ex-girlfriend’s new boyfriend, after the victim was stabbed
during a fight with the defendant. Id. at 73-74. We determined
that the defendant was not entitled to a passion/provocation
charge because the evidence did not “clearly indicate” that a
reasonable person in the defendant’s position would have been
adequately provoked. Id. at 82.
Despite the similarity in factual circumstances -- a
violent interaction preceded by a tense relationship between two
men involved in a romantic triangle -- Funderburg does not
direct the outcome here. Central to the distinction is the lack
of request for the jury instruction in Funderburg and the clear
request for the jury instruction here. We decided Funderburg
under a “clearly indicated” standard of review because it
involved an alleged failure to provide a sua sponte instruction
-- the trial court had the obligation to give the instruction if
the evidence “clearly indicated” the objective elements of the
offense. Ibid. Here, we apply a different standard -- the
rational-basis test -- to review the trial court’s failure to
provide a jury instruction when defendant requested it. We turn
now to a discussion of the rational-basis test.
B.
11
N.J.S.A. 2C:1-8(e) mandates that “[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.” Accordingly, when a defendant requests a
jury instruction on a lesser-included offense and is denied the
requested instruction, an appellate court reviews the denial of
that request, 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 of the
lesser.” Brent, supra, 137 N.J. at 117. If such a rational
basis exists, a trial court’s failure to give the requested
instruction is reversible error. Id. at 118.
The rational-basis test sets a low threshold. State v.
Crisantos, 102 N.J. 265, 278 (1986). A defendant is entitled to
a lesser-included offense instruction rationally supported by
the evidence, even if the instruction is inconsistent with the
defense theory. Brent, supra, 137 N.J. at 118; State v. Powell,
84 N.J. 305, 317 (1980); State v. Hollander, 201 N.J. Super.
453, 473 (App. Div.), certif. denied, 101 N.J. 335 (1985). In
deciding whether the rational-basis test has been satisfied, the
trial court must view the evidence in the light most favorable
to the defendant. Mauricio, supra, 117 N.J. at 412.
In this case, we determine whether there was a rational
basis for a reasonable jury to acquit defendant of murder and
12
convict defendant of passion/provocation manslaughter.
Passion/provocation manslaughter, 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), is a well-established lesser-included offense of
murder, State v. Robinson, 136 N.J. 476, 482 (1994) (citing
N.J.S.A. 2C:1-8(d)(3)). Even though a person convicted of
passion/provocation manslaughter acts with the intent to kill,
“the presence of reasonable provocation, coupled with
defendant’s impassioned actions, establish a lesser
culpability.” Id. at 482, 486.
Passion/provocation manslaughter has four essential
elements: “[1] the provocation must be adequate; [2] the
defendant must not have had time to cool off between the
provocation and the slaying; [3] the provocation must have
actually impassioned the defendant; and [4] the defendant must
not have actually cooled off before the slaying.” Mauricio,
supra, 117 N.J. at 411. The first two elements are assessed
objectively, while the third and fourth are “more subjective
because they relate to the defendant’s actual response.”
Robinson, supra, 136 N.J. at 490 (citing Mauricio, supra, 117
N.J. at 411). To warrant the passion/provocation jury charge,
the evidence must rationally support only the first two
13
elements; the subjective elements “should usually be left to the
jury to determine.” Mauricio, supra, 117 N.J. at 413.
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.’” Id. at 412(alterations in original) (quoting State v. King, 37 N.J. 285,
301-02 (1962)). Words alone are insufficient to create adequate
provocation, Crisantos, supra, 102 N.J. at 274, but the presence
of a gun or knife can satisfy the provocation requirement,
Mauricio, supra, 117 N.J. at 414. Battery is also considered
adequate provocation “almost as a matter of law.” Ibid.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.” Id. at 413. In
Robinson, supra, however, we found that a reasonable person in
the defendant’s position “might not have had time to cool down
between the provocation and the retaliation” where the defendant
shot his uncle “almost immediately” after being provoked. 136
N.J. at 492.
C.
As a starting point, we easily conclude that defendant
could have been acquitted of first-degree murder, thereby
satisfying the first part of the rational-basis test, for the
same reasons that charges on the lesser-included offenses of
14
reckless and negligent manslaughter were appropriate. The only
remaining issue, thus, is whether there was a rational basis for
a reasonable jury to convict defendant of passion/provocation
manslaughter. We find that there was.
Although the verbal argument between Hall and defendant was
insufficient provocation on its own, see Crisantos, supra, 102
N.J. at 274, the presence of the gun could have provoked a
reasonable person in defendant’s position, see Mauricio, supra,117 N.J. at 414. A reasonable jury, viewing the evidence in the
light most favorable to defendant -- the only living witness to
what happened in the kitchen after Lowenstein left -- could
believe that Hall was the first one to pull out the gun. Even
if Hall did not draw the weapon, the physical struggle between
Hall and defendant constituted a battery, which we have said
rises to the level of adequate provocation. Ibid. We conclude
that there was a rational basis for a jury to find that the
provocation was objectively adequate.
The evidence also provides a rational basis on which to
conclude there was no cooling-off period between the provocation
and the shooting. The first gunshot, which alone was not fatal,
was fired almost immediately after Hall and defendant began
arguing. The fatal second gunshot was fired soon afterward.
Thus, as in Robinson, where we found the defendant had not
15
cooled off, defendant shot the victim “almost immediately” after
being provoked.
We conclude that, accepting defendant’s version of the
event, the alleged provocation was adequate and that the
intervening time was short enough that defendant did not have
time to cool off from that provocation. Those determinations
provide a sufficient basis to have warranted a
passion/provocation manslaughter instruction. The instruction
should have been provided as requested. The remaining elements
-- whether defendant was in fact provoked and whether he in fact
cooled off -- are left to the jury to decide.
IV.
The judgment of the Appellate Division reversing
defendant’s conviction is affirmed, and the matter is remanded
to the trial court for further proceedings consistent with this
opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.
16