Before Judges King, Kestin and Cuff.
The opinion of the court was delivered by: Cuff, J.A.D.
 Argued: March 4, 1998
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Appellant filed a pro se supplemental brief.
This appeal requires us to determine whether a defendant must admit using a weapon to intentionally kill the aggressor in the act of defending himself in order to be entitled to a self-defense instruction. We hold that, under the circumstances of this case, defendant was entitled to a self-defense charge even though he did not admit using his handgun in self-defense and intentionally killing the aggressor. Because of errors in the self-defense charge, as well as the charge concerning unlawful possession of the handgun and the omission of a charge on passion/provocation manslaughter, a new trial is required.
A jury convicted defendant Benjamin Blanks of the knowing or purposeful murder in violation of N.J.S.A. 2C:11-3a(1),(2) of Ronald Massey, the boyfriend of the daughter of his long-term paramour, and possession of a weapon (a handgun) for an unlawful purpose in violation of N.J.S.A. 2C:39-4a. The trial Judge merged the weapons conviction with the murder conviction and imposed a life term with a thirty-year period of parole ineligibility. The usual penalties and assessments were also imposed.
On appeal, defendant raises the following points:
SINCE DEFENDANT WAS IN HIS OWN DWELLING AT THE TIME OF THE ENCOUNTER WITH THE DECEDENT, THE JUDGE SHOULD NOT HAVE CHARGED THE JURY THAT DEFENDANT HAD A DUTY TO RETREAT BEFORE USING DEADLY FORCE. (Not Raised Below).
A JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER SHOULD HAVE BEEN GIVEN. (Not Raised Below).
NO HARMON INSTRUCTION WAS GIVEN TO THE JURY ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below).
In his supplemental pro se submission, the following points are argued:
THE TESTIMONY OF ANDREA EFFINGER WHEREIN SHE STATED THAT DEFENDANT DID NOT LIKE THE VICT[I]M WAS OPINED TESTIMONY THAT LACK[S] FOUNDATION AND SHOULD HAVE BEEN STRICKEN FROM THE RECORD TO AVOID POSSIBLE PREJUDICE TO THE JURY AND DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL.
APPELLANT'S SIXTH AMENDMENT RIGHTS UNDER THE UNITED STATE[S] AND NEW JERSEY CONSTITUTION W[ERE] VIOLATED BY TRIAL COUNSEL.
Due to errors in the jury instructions which had the clear capacity to produce an unjust result, we reverse the convictions and remand for a new trial. In light of this Disposition, we need not reach defendant's pro se supplemental arguments.
On September 24, 1994, twenty-four year old Massey was killed by a single gunshot wound to his head. At the time he was killed, Massey was visiting his girlfriend Andrea Effinger (Andrea), and their child, Rahmael. Andrea and Rahmael lived in a four-bedroom apartment in Hoboken with Andrea's mother, Rinda Effinger (Rinda); Andrea's sisters, Latoya and Shauntee Effinger; defendant; Rinda's son, Anthony Effinger; and Rinda and defendant's son, Jason. Defendant and Rinda had lived together for many years and shared a bedroom in the apartment.
At the time of the shooting, Andrea had dated Massey for a year and a half; their son was five months old. Massey visited her every day at the apartment. According to Andrea, defendant did not like Massey. Andrea drew this Conclusion from "[t]he way [defendant] used to act towards [Massey]."
According to Andrea, Massey arrived at the apartment at approximately 10 p.m. Everyone, except defendant, was home at the time. Soon after his arrival, Massey went into the kitchen to make himself something to eat. At approximately 10:30 p.m., Andrea went into the kitchen where she observed Massey cooking eggs. While Andrea was in the kitchen talking to Massey, defendant came home, looked into the kitchen, walked down the hallway to his room and slammed the ...