NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0166.
Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).
Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).
Before Judges Simonelli, Fasciale and Haas.
Defendant appeals from her convictions for first-degree aggravated manslaughter of S.O., N.J.S.A. 2C:11-4a; simple assault of J.P., N.J.S.A. 2C:12-1a; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirm.
On June 27, 2008, at approximately midnight, defendant walked past the home of S.O. S.O. exited the house with several other girls and one of the girls called defendant a "trick." An argument between defendant and S.O. ensued and defendant said, "I'll be back." Defendant went home, retrieved a loaded gun, and went back outside holding up the gun and saying, "[W]ho's calling me a trick now?"
S.O. said, "[L]et's shoot the fair, " meaning "let's fight one-on-one, " and stepped toward defendant. Defendant swung the gun at S.O. In the process, the gun discharged and a bullet struck S.O. The bullet passed through S.O.'s neck and hit J.P. in the collarbone. Defendant ran away and hid the gun under a garbage can, but turned herself in to the police the next day. S.O. died of the gunshot wound; J.P. sustained a fractured collarbone.
The jury found defendant guilty of these violent crimes and weapons-related offenses and, after the appropriate mergers, the judge imposed an aggregate prison term of twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant raises the following points:
THE COURT'S FAILURE TO SUA SPONTE INSTRUCT THE JURY ON THE THEORY OF SELF-DEFENSE DEPRIVED [DEFENDANT] OF HER RIGHT TO DUE PROCESS AND A FAIR TRIAL, REQUIRING REVERSAL. (Partially Raised Below).
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO ADD PASSION PROVOCATION AS A LESSER-INCLUDED OFFENSE OF MURDER. (Not raised below).
THE TRIAL JUDGE'S FAILURE TO CHARGE ON CAUSATION WITHIN THE MURDER/AGGRAVATED MANSLAUGHTER/RECKLESS MANSLAUGHTER
INSTRUCTION, WHERE THE DEFENSE PRESENTED A THEORY OF ACCIDENTAL DEATH, CONSTITUTES REVERSIBLE ERROR. (Not Raised Below).
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY ON MISTAKE OF FACT WHERE DEFENSE COUNSEL'S CENTRAL ARGUMENT WAS THAT [DEFENDANT] LACKED REQUISITE MENS REA TO BE GUILTY OF MURDER OR AGGRAVATED/RECKLESS MANSLAUGHTER ...