                                NOT FOR PUBLICATION WITHOUT THE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-4145-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FROYLAN LOPEZ,

     Defendant-Appellant.
____________________________

                    Argued June 25, 2019 – Decided August 12, 2019

                    Before Judges Rothstadt and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 16-06-0882.

                    Susan Lee Romeo, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Susan Lee Romeo, of
                    counsel and on the brief).

                    Alanna M. Jereb, Assistant Prosecutor, argued the
                    cause for respondent (Esther Suarez, Hudson County
                    Prosecutor, attorney; Alanna M. Jereb, on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Froylan Lopez appeals from the Law Division's March 26,

2018 judgment of conviction that the trial judge entered after a jury found

defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1), N.J.S.A. 2C:11-

3(a)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d). Defendant also appeals from his sentence to an aggregate forty-

year term of imprisonment subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. On appeal, defendant does not challenge the jury's finding

that he fatally stabbed his victim, Troy Brandon. His contentions are that it was

plain error for the trial judge to fail to instruct the jury sua sponte on the lesser-

included offense of passion/provocation manslaughter, to allow the admission

of inadmissible evidence and testimony, and that his sentence was excessive.

For the reasons that follow, we affirm.

                                          I.

      The evidence adduced at trial by the State upon which the jury relied

consisted of testimony from law enforcement officers and witnesses who were

present the night of the fatal assault, and from video recordings from the victim's




                                                                              A-4145-17T4
                                          2
cell phone and area video surveillance cameras. The facts established by that

evidence is summarized as follows.

      On December 5, 2015, at approximately 10:18 p.m., Miguel Enriques,

while sitting in his parked car, engaged in an argument with an unknown man

and woman on the sidewalk. The man approached the car and argued with

Enriques before leaving the scene and walking up the street with the woman.

Enriques exited his vehicle, opened the trunk of the car, and reached inside. The

unknown man began walking back down the street and Enriques continued

arguing with him from his location. The man walked back over to Enriques and

punched him in the head, causing him to fall.

      After Enriques fell down and the man and woman walked away, Brandon

approached Enriques, turned and walked up the street to his apartment, and then

returned while on his cell phone to check on Enriques. After unsuccessfully

trying to get the attention of a passing police car, Brandon went back in the

direction of his building, paced outside, and finally went inside.

      Defendant appeared on the scene at about 10:25:18 p.m. It was undisputed

that from the time defendant appeared until Brandon was fatally stabbed, only

approximately ninety-four seconds transpired.       Upon his arrival, defendant

spoke to somebody in an upstairs apartment in one of the buildings while


                                                                         A-4145-17T4
                                        3
gesturing up the street and looking at Enriques. He then ran across the street

and about twenty seconds later, ran back in the direction of Brandon's apartment.

He entered a building and reemerged, running back to Enriques. Brandon came

out from his building and defendant began walking over to him. While Brandon

was speaking to defendant,1 Enriques stood up and remained by his car.

Defendant then lunged toward Brandon and appeared to strike him in the chest.

Both men ran back towards Enriques with Brandon running out of view,

clutching his left arm-pit and defendant going around the driver-side of

Enriques' car at 10:26:53 p.m.

      Defendant was arrested on December 6, 2015. He was later charged in an

indictment with the murder and weapons charges that the jury found him guilty

of committing. At the ensuing trial, the State's witnesses testified about their

observations and involvement in the matter leading up to defendant's arrest and

indictment. Also during the trial, the State played several video recordings from

the scene that night and a recording of defendant's interview by police after he

was apprehended, in which he admitted being at the scene that night, and having

a knife, but denying that he did anything to Brandon. Defendant did not testify



1
 Defendant's native language is Spanish and he speaks and understands limited
English. Brandon was speaking to defendant in English.
                                                                         A-4145-17T4
                                       4
but called a witness who testified about one video taken by Brandon that

depicted the fight between Enriques and the unknown man.

      After the jury deliberated, it unanimously found defendant guilty on all

counts. The trial judge later sentenced defendant and this appeal followed.

      On appeal, defendant presents the following issues for our consideration:

            POINT I

            THE COURT'S FAILURE TO INSTRUCT THE JURY
            SUA SPONTE ON THE LESSER-INCLUDED
            OFFENSE      OF     PASSION/PROVOCATION
            MANSLAUGHTER WAS PLAIN ERROR AND
            VIOLATED DEFENDANT'S RIGHT TO A FAIR
            TRIAL, BECAUSE THE RECORD PRESENTED
            OVERWHELMING EVIDENCE OF LEGALLY
            SUFFICIENT PROVOCATION AND THE ABSENCE
            OF ANY COOLING-OFF PERIOD BEFORE THE
            STABBING (U.S. CONST. AMENDS. V AND XIV)
            (NOT RAISED BELOW).

            POINT II

            DEFENDANT'S SENTENCE IS EXCESSIVE.

      Defendant filed a pro se supplemental brief in which he presents the

following additional arguments:

            POINT I

            THE TRIAL COURT ERRED WHEN IT ALLOWED
            INTO EVIDENCE, AN ALLEGED STATEMENT
            MADE BY AN UNKNOWN WITNESS TO THE
            STATE'S   WITNESS   NATASHA    TORRES,

                                                                        A-4145-17T4
                                       5
            CONSTITUTING DOUBLE HEARSAY, AND DOES
            NOT FALL WITHIN ANY EXCEPTION.

            POINT II

            THE TRIAL COURT ERRED WHEN IT ALLOWED
            THE 9-11 CALL, WHICH IS NOT TESTIMONIAL,
            AND DOES NOT FALL WITHIN AN EXCEPTION
            TO N.J.R.E. 802.

            POINT III

            THE STATEMENT MADE BY MS. TORRES
            REPEATING WHAT THE UNKNOWN WITNESS
            SAID CANNOT BE ADMITTED BECAUSE IT DOES
            NOT FALL UNDER THE PRESENT SENSE
            IMPRESSION EXCEPTION TO THE HEARSAY
            RULE.

            POINT IV

            THE TRIAL COURT ERRED WHEN IT ALLOWED
            DETECTIVE MIRAGLIOTTA TO VIEW A VIDEO
            IN FRONT OF THE JUROR'S AND TO DRAW
            CONCLUSIONS AS TO THE DEFENDANT'S
            ACTIONS.

                                      II.

     We first address defendant's argument that the trial judge committed plain

error by failing to charge passion/provocation manslaughter as a lesser-included

offense of murder. He maintains that "mere seconds" passed between seeing his

friend on the ground and stabbing Brandon, and that the record does not contain

any evidence that there was a sufficient cool-down period. For that reason,

                                                                        A-4145-17T4
                                       6
although he never requested the charge, defendant contends the trial court was

obligated to charge the jury with the lesser-included offense. We disagree.

     "When a defendant fails to object to an error or omission [about a jury

charge] at trial, we review for plain error. Under that standard, we disregard

any alleged error 'unless it is of such a nature as to have been clearly capable of

producing an unjust result.'"     State v. Funderburg, 225 N.J. 66, 79 (2016)

(quoting R. 2:10-2).     Reversal is warranted only where an error raises "a

reasonable doubt . . . as to whether the error led the jury to a result it otherwise

might not have reached." Ibid. (alteration in original) (quoting State v. Jenkins,

178 N.J. 347, 361, (2004)). "The mere possibility of an unjust result is not

enough." Ibid.

      In its jury charges, a "trial court must give '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.'" State v. Baum, 224 N.J. 147, 159

(2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). Accordingly, "the

court has an 'independent duty . . . to ensure that the jurors receive accurate

instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party.'"           Ibid.

(alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)).


                                                                            A-4145-17T4
                                         7
      "[I]f parties do not request a lesser-included-offense charge, reviewing

courts 'apply a higher standard, requiring the unrequested charge to be 'clearly

indicated' from the record.'" State v. Fowler, ___ N.J. ___, ___ (2019) (slip op.

at 22) (quoting State v. Alexander, 233 N.J. 132, 143 (2018)). See also State v.

Denofa, 187 N.J. 24, 42 (2006); N.J.S.A. 2C:1-8(e). As such,

            [t]he "clearly indicated" standard does not require trial
            courts either to "scour the statutes to determine if there
            are some uncharged offenses of which the defendant
            may be guilty," . . . or "'to meticulously sift through the
            entire record . . . to see if some combination of facts
            and inferences might rationally sustain' a lesser
            charge,". . . . Instead, the evidence supporting a lesser-
            included charge must "jump[ ] off the page" to trigger
            a trial court's duty to sua sponte instruct a jury on that
            charge.

            [Alexander, 233 N.J. at 143 (third and fifth alterations
            in original) (citations omitted).]

      Passion/provocation manslaughter is a "well-established lesser-included

offense of murder." State v. Carrero, 229 N.J. 118, 129 (2017). Under N.J.S.A.

2C:11-4(b)(2), a criminal homicide may be considered manslaughter when "[a]

homicide which would otherwise be murder . . . is committed in the heat of

passion resulting from a reasonable provocation."            "Passion/provocation

manslaughter is an intentional homicide committed under extenuating

circumstances that mitigate the murder." State v. Robinson, 136 N.J. 476, 481


                                                                          A-4145-17T4
                                        8
(1994). It "contains all the elements of murder except that the presence of

reasonable provocation, coupled with defendant's impassioned actions, establish

a lesser culpability." Id. at 482; see N.J.S.A. 2C:1-8(d)(3).

      Four elements must be met for passion/provocation manslaughter: (1)

there must be adequate provocation; (2) "the defendant must not have had time

to cool off between the provocation and the slaying"; (3) the defendant must

have been actually impassioned by the provocation; and (4) "the defendant must

not have actually cooled off before the slaying." Funderburg, 225 N.J. at 80

(quoting State v. Mauricio, 117 N.J. 402, 411 (1990)).

      The first two elements are objective while the other two are subjective.

Carrero, 229 N.J. at 129. Accordingly, a court should decide whether there is

sufficient evidence of the first two elements.         Ibid.    "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.'" Ibid. (quoting Mauricio, 117 N.J. at 413).

      The element of adequate provocation is measured by whether "'loss of

self-control is a reasonable reaction.'" State v. Foglia, 415 N.J. Super. 106, 126

(App. Div. 2010) (quoting Mauricio, 117 N.J. at 412). With regard to the first

element, "the provocation must be 'sufficient to arouse the passions of an


                                                                          A-4145-17T4
                                        9
ordinary [person] beyond the power of his [or her] control.'" Carrero, 229 N.J.

at 129 (alterations in original) (quoting Mauricio, 117 N.J. at 412).        "The

generally accepted rule is that words alone, no matter how offensive or insulting,

do not constitute adequate provocation to reduce murder to manslaughter."

Funderburg, 225 N.J. at 80 (quoting State v. Crisantos, 102 N.J. 265, 274

(1986)). "Battery is . . . considered adequate provocation 'almost as a matter of

law'" and the element may also be satisfied by "the presence of a gun or knife."

Carrero, 229 N.J. at 129 (quoting Mauricio, 117 N.J. at 414).

      Regarding the cool-off period, "it is well-nigh impossible to set specific

guidelines in temporal terms."     Ibid. (quoting Mauricio, 117 N.J. at 413).

Therefore, "[t]rial courts are . . . remitted to the sense of the situation as

disclosed by the facts." Mauricio, 117 N.J. at 413.

      In support of his argument, defendant cites to State v. Coyle, 119 N.J. 194,

226 (1990) for the proposition that a third person may be sufficiently provoked

"when a close friend suffers injury or abuse under circumstances that would

constitute adequate provocation had the third person been the object of the

abuse." In Coyle, the defendant shot and killed the abusive husband of a woman

with whom he was having an affair. 119 N.J. at 204. The shooting occurred

after the husband locked the woman out of the house, defendant, who own ed a


                                                                          A-4145-17T4
                                       10
gun and had taken mescaline earlier in the evening, demanded that the woman

be allowed to return, and a chase ensued. Id. at 203-04. The trial judge did not

instruct the jury on the State's burden of proving passion/provocation beyond a

reasonable doubt in the context of murder, but instead did so when giving the

manslaughter charge. Id. at 222. The defendant argued that the murder charge

was deficient in failing to address passion/provocation evidence and that the

State could only prove murder if it proved the absence of adequate provocation.

Id. at 221. The State argued for the first time on appeal that there was no harm

to the defendant as there was insufficient evidence of passion/provocation and

that the charge should not have been given. The Supreme Court did not agree.

Id. at 224. It stated that

             [t]he jury could have rationally concluded that
             defendant and [the victim] had engaged in a heated
             confrontation, which led to the firing of a warning shot;
             that [the victim] had obstructed the couple's escape and
             had chased his wife down the street; and that in an effort
             to protect [her], defendant had pursued [the victim] and
             had fired randomly at him. Although that evidence
             might not conclusively establish the existence of
             passion/provocation, it does leave "room for dispute."

             [Ibid. (quoting Mauricio, 117 N.J. at 415).]

      We do not find that Coyle supports defendant's position. Here, Enriques

was already injured by the time defendant arrived. Defendant did not witness


                                                                          A-4145-17T4
                                        11
the assault, was not protecting Enriques from being harmed, and spoke to him

before searching for Brandon. This is not the type of provocation described in

Coyle.

      Defendant also attempts to analogize the facts of Mauricio to his case. In

Mauricio, the defendant killed the victim in a case of mistaken identity. 117

N.J. at 409. The defendant entered a bar in the early hours of the morning and

the bouncer did not permit him access. Id. at 405-06. The bouncer grabbed the

defendant's arms and forcefully escorted him out of the establishment. Id. at

406. Defendant returned and the bouncer again told him to leave but he ignored

the request, prompting the bouncer to open the door and pin him against the

outside wall. Id. at 406-07. The victim, who was also in the bar, left after

defendant was thrown out the second time and the two men became subsequently

engaged in a conversation on the street. Id. at 408. Defendant was later seen

fatally shooting the victim and laughing. Id. at 408-09.

      At trial, the State theorized that defendant killed the victim because he

believed him to be the bouncer. Id. at 409. Relying on that theory, the defendant

requested a manslaughter charge on the basis of killing the victim in the heat of

passion due to his mistaken identity, but the trial court denied the request. Ibid.

We affirmed the court's refusal, finding that the defendant's forceful removal


                                                                           A-4145-17T4
                                       12
from the bar amounted to inadequate provocation. Id. at 409-10. The Supreme

Court disagreed and stated that it was "satisfied that the evidence was

susceptible of different interpretations and that [the] defendant's view of the case

would have permitted a jury rationally to conclude that a reasonable person

might, under the circumstances, have reasonably been provoked to the point of

loss of control." Id. at 415.

      As with Coyle, we find defendant's reliance upon Mauricio to be

inapposite. While defendant may have mistaken Brandon's identity for that of

the unknown man who assaulted his friend, unlike the defendant in Mauricio, he

was not reacting to any actual or threatened harm to himself, nor to his

witnessing any to Enriques.

      We instead find the lack of provocation in Funderburg to be more similar

to the case before us. There, the defendant was charged with attempted murder

of his ex-partner's new boyfriend during a physical altercation in which he

stabbed the boyfriend. Funderburg, 225 N.J. at 69-70. Leading up to the

stabbing, a chase ensued between the defendant and the boyfriend. Id. at 72-73.

At trial, neither party requested the passion/provocation attempted manslaughter

charge to be included as a lesser offense to attempted murder. Id. at 75. On

appeal, we reversed and remanded for failure to deliver the instruction. Ibid.


                                                                            A-4145-17T4
                                        13
The Supreme Court reversed, finding insufficient evidence of adequate

provocation. Id. at 82. It noted that "the facts . . . did not clearly indicate that

the objective elements of attempted passion/provocation manslaughter were

present." Ibid. It found that the altercation was not threatening, despite a chase

and "verbal sparring" and noted that there was insufficient evidence of whether

the boyfriend had a weapon. Ibid. As such, it did not find the failure to sua

sponte provide the instruction to be in error. Id. at 83-84.

      Here, while the record reflects that defendant and Enriques were friends,

defendant neither saw the initial altercation nor was provoked during his

interaction with Brandon. He saw his friend on the ground, spoke to him, and

then ran across the street and back again in attempt to find the alleged

perpetrator. When Brandon came out from his apartment, he was talking to

defendant and did not brandish a weapon or attack him in any way. As the trial

judge observed, Brandon "posed no threat . . . . [and] it certainly appears he was

trying to rationalize with [defendant], but [defendant] wouldn't have it." There

also was adequate time for defendant to cool off, given his actions between

initially seeing Enriques, including speaking to an occupant of one of the

buildings, running across the street, and returning to look for Brandon, who did

not immediately appear. As the record does not "clearly indicate" that there was


                                                                            A-4145-17T4
                                        14
adequate provocation, or that defendant if adequately provoked could not have

cooled-down, despite the short amount of time, defendant could not have been

"actually impassioned" by observing and talking to Enriques.

       For these reasons, we conclude that the trial judge did not commit plain

error by not charging the jury, as there was no evidence that jumped off the page

that   required   the trial   judge to      sua sponte instruct    the   jury on

passion/provocation.

                                       III.

       We next turn to the arguments raised in defendant's supplemental brief,

beginning first with his contentions in Points I through Point III about a tape

recording of a 911 call being improperly admitted into evidence. We find his

contention to be without any merit because the trial judge agreed with his

argument that the recording contained what amounted to be double hearsay, and

therefore did not allow the tape to be played to the jury or admitted into

evidence, even though it had been marked for identification.

       We next address defendant's argument in Point IV that the trial court erred

in allowing Detective Peter Miragliotta of the Hudson County Prosecutor's

Office to testify about his opinions and conclusions about defendant's actions as




                                                                          A-4145-17T4
                                       15
the jury viewed a video tape of the events. Here again the record of what

transpired at trial does not support defendant's contention.

      At trial, while the prosecutor was conducting his direct examination of the

detective, the detective indicated that defendant was identified as a suspect from

the videos and interviews with witnesses.       The prosecutor also asked how

defendant's appearance changed from the night of his arrest. Defendant objected

and requested two sidebar conferences that resulted in the trial judge overruling

the objections, but directing the prosecutor to rephrase his question.        The

detective explained that defendant had long hair on the night of his arrest, which

had since been cut short.

      Before playing one of the videos for the jury, the prosecutor requested a

sidebar conference seeking to "introduce lay witness testimony . . . as to . . .

what [wa]s taking place in the video based on [the detective's] opinion" and

experience as a police officer. He noted that the jury would review the video

and either accept or reject the detective's interpretation. Defendant contended

that it would be improper for the witness to opine about the video as he lacked

personal knowledge since he was not there and that a jury could make its own

observations from viewing the video. The prosecutor indicated that he would




                                                                          A-4145-17T4
                                       16
not attempt to have the detective testify that defendant was the individual who

stabbed Brandon.

      The following day, before the jury entered, the prosecutor reiterated that

he would not seek testimony from the detective identifying defendant or

narrating what was occurring in the video. When the detective was recalled, he

did not testify while the videos played for the jury. His testimony consisted of

explaining from where he obtained the videos, the location that was caught on

video, and that the timestamps were fast. He also noted that his unit was able to

identify and interview witnesses from the surveillance footage, including

Enriques.

      Therefore, contrary to defendant's argument on appeal, the prosecutor did

not play the videos while the detective testified so he never gave his opinion

about what was being depicted on them. Notably, to the extent defendant found

any portion of the detective's testimony to still be improper, he failed to

interpose additional objections or seek curative instructions. Applying our plain

error standard to our review of the testimony, we discern none, especially in

light of the other overwhelming evidence of defendant's guilt.




                                                                         A-4145-17T4
                                      17
      To the extent we have not specifically addressed any remaining arguments

raised by defendant in his supplemental brief, we find them to be without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

                                           IV.

      Finally, we address defendant's contentions that his sentence is excessive.

At sentencing, the trial judge did not find any mitigating factors but found

aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and seriousness of

harm inflicted on Brandon, and factor nine, N.J.S.A. 2C:44-1(a)(9), the need to

deter defendant and others from violating the law. He then merged the weapons

charges with the murder charge and imposed a forty-year term of imprisonment

subject to NERA.

      On appeal, defendant argues that the judge imposed a sentence

substantially greater than the thirty-year minimum and focused on events that

had no bearing on his culpability.         He adds that the judge improperly

characterized his search for Brandon as a "hunt" and relied on the visual of

Brandon attempting to flag down the police car, which occurred before

defendant arrived.    Defendant also emphasizes that the stabbing was not

premeditated. We find no merit to these contentions.




                                                                         A-4145-17T4
                                      18
      Our "review of the length of a sentence is limited." State v. Miller, 205

N.J. 109, 127 (2011). We will not substitute our judgment for those of "our

sentencing courts." State v. Case, 220 N.J. 49, 65 (2014).

      We are required to affirm a sentence unless

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

      The record demonstrates that the judge did not violate the sentencing

guidelines, sentenced defendant in accordance with N.J.S.A. 2C:11-3(b)(1), and

his finding of aggravating factors two and nine was fully supported by

competent evidence in the record, as was his finding that no mitigating factors

were present despite defendant's request at sentencing for application of factor

seven. Finally, defendant's sentence does not shock our conscience.

      Affirmed.




                                                                        A-4145-17T4
                                      19
