NOT FOR PUBLICATION WITHOUT THE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-4017-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAHMMEL B. CEPHAS, a/k/a
JAMEL CARPENTER,
JAHMEL CEPHAS,

     Defendant-Appellant.
__________________________

                   Submitted September 16, 2020 – Decided October 5, 2020

                   Before Judges Fuentes and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment Nos. 15-11-
                   1347 and 17-08-0886.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Mark S. Heinzelmann, Designated Counsel,
                   on the brief).

                   Yolanda Ciccone, Middlesex County Prosecutor,
                   attorney for respondent (Patrick F. Galdieri, II,
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Jahmmel B. Cephas was tried before a jury and found guilty of

first-degree aggravated manslaughter, second-degree unlawful possession of a

handgun, second-degree possession of a handgun for unlawful purposes, third-

degree hindering apprehension, and fourth-degree tampering with evidence, as

charged in a Middlesex County indictment. In a bifurcated trial, the same jury

thereafter found defendant guilty of second-degree certain persons not to have

firearms. Defendant appeals from the judgment of conviction entered by the

trial court. We affirm.

                                      I.

      On November 6, 2015, defendant was charged under Indictment No. 15-

11-01347 with first-degree murder, N.J.S.A. 2C:11-3(a) (count one); second-

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) and 2C:58-4

(count two); second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count three); third-degree hindering apprehension,

N.J.S.A. 2C:29-3(b)(1) (count four); and fourth-degree tampering with physical

evidence, N.J.S.A. 2C:28-6(1) (count five).




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                                      2
      On August 8, 2017, another grand jury charged defendant in a single-count

indictment, No. 17-08-0886 with second-degree certain persons not to possess a

firearm, N.J.S.A. 2C:39-7(b)(1).

      The evidence presented at trial showed that Richard Pryce and Shakira

Peel became romantically involved in 2010. Between June 2013 and September

2013, Peel had a "sexual affair" with defendant. Eventually, defendant informed

Pryce that he had a sexual relationship with Peel.          After learning this

information, Pryce ended his relationship with Peel, but the couple later resumed

their relationship in October or November 2013. Thereafter, there was ongoing

tension between Pryce and defendant. They used to be "cool" or "cordial" with

each other, but they were never friends.

      On the evening of February 13, 2015, Pryce and Peel were at the 829

Lounge (Lounge) in Perth Amboy attending a friend's birthday party. Although

defendant was not invited, he arrived at the Lounge at approximately 12:30 a.m.

on Valentine's Day, February 14, 2015. Defendant tried to approach Peel, but

Pryce confronted him before he reached her.

      Peel heard Pryce say to defendant: "Why are you near - - next to my

girlfriend and what are you doing?" According to Peel, defendant responded by

calling Pryce "a [f]ucking faggot . . . [c]oward." According to other attendees


                                                                         A-4017-17T2
                                       3
at the Lounge, Pryce then pushed defendant and "poked him on the side of his

head." The disc jockey working at the Lounge said, "Richard, calm down. It's

not that serious." Bystanders got involved and held back Pryce and defendant.

The bouncer escorted Pryce out of the Lounge. Shortly thereafter, the Lounge

closed, and the patrons left.

      Danielle Wright left the Lounge after it closed and saw Pryce standing

next to her car. She explained what she witnessed:

            And then [defendant] proceeds around the corner, and
            [Pryce] charges towards him. But before he charges
            towards him, I hear two shots, not really knowing that
            it's two shots . . . . And then [Pryce] charges at him,
            and then they start like scuffling and they end up on the
            corner, like in front of my car on Barclay and Amboy
            Avenue. And then they're just like fighting. And then
            [Pryce's] still on the floor, the guy gets up, and then he
            shoots him and then he runs.

            [(Emphasis added).]

      Disleidy Nunez also attended the party. She testified that after leaving the

Lounge around 1:38 a.m., she saw Pryce "laying down on the ground" near the

corner of Barclay Street and Amboy Avenue. Nunez noted that there was a man,

later identified as defendant, standing over Pryce with a handgun pointed at him.

Pryce was pleading loudly with his hands up: "Yo, yo, stop" and "Yo, yo, that's

it." Defendant then shot at Pryce, who got up and ran back towards the Lounge.


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                                        4
As Pryce was running back toward the Lounge, he saw Nunez and told her:

"Leidy, I got shot."

      Harry Abreu was also an eyewitness to the shooting. He testified he saw

defendant fire the gun, and that he pointed it towards the ground during the first

couple of shots. Then, defendant stood over Pryce, who was lying on the ground

with his hands face up in front of him, and shot him for the third time in his

chest. Pryce was unarmed. Surveillance footage from nearby residential and

commercial properties, including footage from the Lounge, captured the

shooting and corroborated the testimony of the eyewitnesses.

      Police arrived at the scene immediately following the shooting because

they were already on their way in response to a "fight call." No weapons were

uncovered, and the police were unable to locate a suspect. However, a crime

scene technician recovered six bullet casings from the scene of the shooting. A

subsequent forensic ballistics examination showed all six bullet casings were

discharged from the same firearm.

      After the shooting, two of Pryce's friends carried him to their car and

drove him to the hospital where he was pronounced dead a few hours later. The

Middlesex County Medical Examiner performed an autopsy on Pryce's body and

found gunshot wounds to his right lower leg, right thigh, and right upper chest.


                                                                          A-4017-17T2
                                        5
The Medical Examiner determined Pryce's cause of death was the gunshot

wound to his chest and the manner of death was a homicide.

      The United States Marshals Service assisted in apprehending defendant in

the State of Georgia on March 21, 2015, and he was charged with Pryce's

murder. On March 2, 2016, defendant filed a notice of the affirmative defense

of justification pursuant to Rule 3:12-1. Prior to trial, defendant moved in limine

to request a passion-provocation manslaughter charge. In response, the State

moved to preclude defendant from asserting passion-provocation manslaughter

to negate the mens rea required to sustain a murder conviction at trial.

      At the close of the evidence but prior to summations, the trial court

granted the State's motion to preclude a charge of passion-provocation

manslaughter as a lesser-included offense to murder. The court determined there

was no rational basis to instruct the jury on a charge of passion-provocation

manslaughter. The trial court provided the following explanation in support of

her ruling:

              First we have the inside of the bar when, viewing the
              testimony in the light most favorable to the defendant,
              the victim was the aggressor, but despite the potential
              for provocation at that point the bar scene did not result
              in any loss of control as there were no actions by the
              defendant for at least another five minutes, according
              to the video evidence, during which there were multiple
              intervening actions and events. The victim was

                                                                           A-4017-17T2
                                          6
            removed, the lights went on, more than a dozen people
            are moving in and around, going in and out of the bar.
            People are leaving the bar, both the defendant and the
            victim, are surrounded by and interacting with multiple
            friends.

            So, while the potential provocation in the bar was not
            sufficient, even if it was there was time to cool off and
            there was a cooling off as evidenced by the defendant's
            demeanor in the video.

            Furthermore, the provocation up to that time was -- was
            really way out of proportion to the defendant's reaction
            in pulling out a gun and firing shots toward the victim
            as the two men on the corner of Barclay and Amboy
            Avenue. The defendant's response to the victim's
            comments in the bar and even the victim's alleged act
            of poking, as described by the witness, Carpenter, 1 are
            completely disproportionate to pulling out a gun and
            the cases do hold that those whose use of force is not
            proportional to the provocation may not receive that
            charge.

            The second point of potential provocation would be
            when the victim charged at the defendant at the corner
            immediately preceding the scuffle on the ground,
            however, and this is a big however, it does appear and
            I find that the defendant precipitated that charging by
            the victim by firing shots toward the victim.

1
   Jamar Carpenter was at the 829 Lounge on February 13, 2015. He testified
that he "grew up" with both defendant and Pryce. Carpenter witnessed the initial
altercation at the bar between defendant and Pryce. Carpenter testified that
Pryce "poked" defendant on the head with his finger, but could not ascertain
with what degree of force. Carpenter physically "stepped in" between the two
men to keep them separated. As a result, "[t]he bar stopped playing the music
because of the altercation. They turned the lights on and basically told people to
start leaving." Carpenter saw Pryce leave the bar accompanied by his friends.
                                                                          A-4017-17T2
                                        7
            According to the case law, and I'm looking at [State v.
            Harris, 114 N.J. 525 (1995)] the defendant does not get
            the benefit of a passion[-]provocation manslaughter
            charge when he created the circumstances of his own
            passion. Defense [c]ounsel argued that the passion was
            provoked when the defendant was being tossed around
            like a rag doll on the street but, again, he created that
            circumstance by firing the gun at Richie, bringing the
            gun to the fist fight.

            The Docaj Court was also cited in the State's brief,
            notes that in cases of consensual combat the defendant's
            response must be proportionate to the provocation and
            although it would be a stretch to call it a consensual
            combat in light of the fact that it was precipitated by the
            defendant shooting at the victim or even at the ground
            in front of the victim, the combat was not waged on
            equal terms and it is clear to this [c]ourt that the
            defendant did not fight on equal terms when he killed
            Richie with a deadly weapon which he had previously
            concealed on his person which is relevant based upon
            the Cristanos case.

            So, those are my findings with regard to the granting of
            the State's motion to preclude the passion[-]provocation
            manslaughter charge.

            [(Emphasis added).]

      After an eight-day trial, the jury found defendant guilty of the lesser-

included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1), and guilty on the other four counts. Thereafter, defendant was tried

before the same jury on the certain persons offense and found guilty. See State


                                                                          A-4017-17T2
                                        8
v. Bailey, 231 N.J. 474, 484-85 (2018), (citing State v. Ragland, 105 N.J. 189,

193 (1986)). The court denied defendant's motion for a new trial and granted

the State's motion for an extended term sentence on the aggravated manslaughter

offense.

      On December 21, 2017, following merger, the sentencing court sentenced

defendant to an aggregate custodial term of sixty years on both indictments. The

sentence consisted of an extended fifty-year term pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2, for aggravated manslaughter; a concurrent

five-year term for hindering apprehension with two-and-a-half years of parole

ineligibility; and a consecutive ten-year term for the certain persons offense with

five years of parole ineligibility. The court ordered defendant to pay statutory

fines and penalties.

      Defendant presents the following arguments on appeal:

            POINT I

            THE TRIAL COURT IMPROPERLY REFUSED TO
            INSTRUCT THE JURY ON THE LESSER-
            INCLUDED     OFFENSE    OF    PASSION-
            PROVOCATION MANSLAUGHTER.

                   A. Standard of Review.

                   B. Standard for Passion-Provocation
                   Manslaughter.


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                                        9
                   C. The Trial Court Should Have Charged
                   Passion-Provocation       Manslaughter
                   Because The Facts, Viewed Most
                   Favorably to Cephas, Show That Cephas
                   Was Provoked By Pryce Into Using Lethal
                   Force.

            POINT II

            THERE WAS NO BASIS FOR THE TRIAL COURT
            TO APPLY AGGRAVATING FACTORS ONE AND
            THREE, AND THERE WAS A BASIS TO APPLY
            MITIGATING FACTOR THREE; THE TRIAL
            COURT'S   SENTENCE   OF  CEPHAS    WAS
            ERRONEOUS AND SHOULD BE REVERSED.

                   A. Standard of Review.

                   B. The Trial Court Erred in Finding
                   Aggravating Factor One.

                   C. The Trial Court Erred in Finding
                   Aggravating Factor Three (Commission of
                   Additional Offenses).

                   D. The Trial Court Should Have Found
                   Mitigating    Factor  Three   (Strong
                   Provocation).

                                        II.

      We will begin our review with defendant's argument that the trial court

committed reversible error in failing to instruct the jury with respect to passion -

provocation manslaughter as a lesser- included offense of purposeful or knowing

murder.

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                                        10
      Proper jury instructions "are essential for a fair trial." State v. Green, 86

N.J. 281, 287 (1981).       The court must give the jury "a comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find." Id. at 287-88. The jury

charge should include instructions on all "essential and fundamental issues and

those dealing with substantially material points."        Id. at 290.    Because a

defendant should be tried with correct jury instructions, "an erroneous charge

will rarely stand on the ground that the error was harmless." State v. Barden,

195 N.J. 375, 394 (2008).

      "N.J.S.A. 2C:1-8(e) provides that a 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.'" State v. Brent, 137 N.J. 107,

113 (1994). Under this section of the Code, there must be "not only a rational

basis in the evidence for a jury to convict the defendant of the included offense

but . . . also a rational basis in the evidence for a jury to acquit the defendant of

the charged offense before the court may instruct the jury on an uncharged

offense." Id. at 113-14. "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." State v. Carrero, 229 N.J. 118, 128 (2017).


                                                                             A-4017-17T2
                                        11
      The trial court was only required to instruct the jury regarding the lesser

included offense of passion-provocation manslaughter if the appropriateness of

this instruction was "clearly indicate[d]" by the evidence. State v. Choice, 98

N.J. 295, 299 (1985). "Passion[-]provocation manslaughter has four elements:

the provocation must be adequate; the defendant must not have had time to cool

off between the provocation and the slaying; the provocation must have actually

impassioned the defendant; and the defendant must not have actually cooled off

before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "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." Ibid.

      There was no rational basis for finding any of these elements based on the

evidence presented at trial. To justify a finding of adequate provocation, "the

provocation must be 'sufficient to arouse the passions of an ordinary [person]

beyond the power of his [or her] control.'" Id. at 412 (quoting State v. King, 37

N.J. 285, 301-02 (1962) (alterations in original)). Generally, "words alone, no

matter how offensive or insulting, do not constitute adequate provocation to

reduce murder to manslaughter." State v. Crisantos, 102 N.J. 265, 274 (1986).




                                                                           A-4017-17T2
                                       12
However, the Court has held that a threat with a gun might constitute adequate

provocation. State v. Powell, 84 N.J. 305, 320 (1980).

      The evidence in this case indicated that defendant and Pryce were

romantically involved with the same woman, had a heated exchange of words,

and Pryce shoved and poked defendant on the head with his finger. When

defendant was ejected from the Lounge, he did not leave as directed but instead

waited for Pryce outside and engaged him again while armed with a handgun.

Defendant pulled out his handgun and shot Pryce at close range while Pryce laid

on the ground helpless, repeatedly asking defendant to stop. Defendant shot

Pryce in his right lower leg, right thigh, and right upper chest. According to the

Medical Examiner, the shot to the chest was the fatal one.          There was no

evidence that Pryce attacked or attempted to attack defendant with lethal force.

Whatever Pryce may have said to defendant could not be found to constitute

"adequate   provocation"    to   justify    a   finding   of   passion-provocation

manslaughter.

      Moreover, Pryce begged for defendant to "stop and had his hands and legs

raised in a non-threatening manner."        Even assuming that defendant was

impassioned by his verbal altercation with Pryce, the trial court aptly found

defendant lost "self-control," and sufficient time had passed for an ordinary


                                                                           A-4017-17T2
                                       13
person to cool off. Further, the record confirms Pryce was unarmed during the

encounter and pleaded for his life. Under these circumstances, there was no

rational basis to support a passion-provocation manslaughter charge.

                                       III.

      We have considered defendant's remaining arguments and are satisfied in

light of the record and applicable law that none of them are of sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we

add the following comments.

      Defendant argues that his sixty-year extended term sentence is excessive.

He contends the sentencing court erred in finding aggravating factors one,

N.J.S.A. 2C:44-1(1) (the nature and circumstances of the offense, and the role

of the actor therein, including whether or not it was committed in an especially

heinous, cruel, or depraved manner); aggravating factor three, N.J.S.A. 2C:44 -

1(a)(3) (the risk that the defendant will commit another offense); and failing to

find mitigating factor three, N.J.S.A. 2C:44-1(b)(3) (the defendant acted under

a strong provocation), that is Pryce may have approached defendant first at the

Lounge.

      Appellate review of sentencing decisions is governed by an abuse of

discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Absent a


                                                                         A-4017-17T2
                                      14
"clear error of judgment," an appellate court may not substitute its judgment for

that of the sentencing court. Ibid. (quoting State v. Roth, 95 N.J. 334, 363-65

(1984)).   So long as the sentence is within statutory guidelines and the

aggravating and mitigating factors "were based upon competent credible

evidence in the record," it will not be disturbed. State v. Miller, 25 N.J. 109,

127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)); see also State

v. Clarke, 203 N.J. 166, 176-77 (2010).

      We discern no abuse of discretion in the trial court's identification and

weighing of the applicable sentencing factors. The record fully supports the

sentence imposed. The trial court's findings as to the aggravating and mitigating

factors were all supported by substantial credible evidence, and the sentence

does not shock the judicial conscience.

      Describing the events during the sentencing hearing, the trial court stated

Pryce was "shot at least three times" and begged for his life "while the defendant

stood over him, looked down at him, and shot him in the chest." Moreover, the

court noted that Pryce lived for more than an hour after being shot and drowned

in his own blood.

      Throughout the trial, the court noted defendant displayed "a bit of an

attitude" and had "very little signs of remorse."      We conclude the court's


                                                                          A-4017-17T2
                                       15
sentence was not an abuse of discretion and followed the sentencing guidelines.

cf. State v. Tindell, 417 N.J. Super. 530, 571-72 (App. Div. 2011).

      Affirmed.




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                                      16