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March 16, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Byad Lockett

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-0249-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (290)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE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-0249-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BYAD LOCKETT,

Defendant-Appellant.

---

Submitted December 3, 2025 – Decided March 16, 2026

Before Judges Gummer, Vanek, and Jacobs.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 21-12-2523.

Jennifer N. Sellitti, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).

Theodore N. Stephens II, Essex County Prosecutor,
attorney for respondent (Shep A. Gerszberg, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
Defendant Byad Lockett appeals from his convictions and sentence for

attempted murder, aggravated assault, and weapons possession. We affirm.

I.

In September 2021, defendant was detained at the Essex County Jail

pending charges unrelated to this appeal. The jail houses inmates in units known

as "pods." Each pod has two levels, with sixteen cells per level and two inmates

assigned to each cell. A single corrections officer is stationed inside each pod

and is responsible for supervising the sixty-four inmates housed there. Each pod

is monitored by two video cameras.

On the morning of September 23, another inmate, Jayshawn Boyd, was

moved to the second level of pod 3-C, where defendant was also housed. That

day was designated for general cleaning of the facility and commissary

distribution. Some of the inmates, including defendant, were assigned to help

distribute commissary bags. Corrections Officer Jeremy Alvarado opened

Boyd's cell so his cellmate could claim his commissary order. Against

Alvarado's instruction, Boyd exited his cell, descended to the first level and said,

"I want to fight. Where they at?" In an effort to restore calm, Alvarado told

Boyd to speak privately with him, but Boyd refused. Inmate Davon Branch also

attempted to de-escalate the situation by encouraging Boyd to speak with

A-0249-23
2
Alvarado. Boyd ignored the request, screamed profanities, and ran about,

cursing and spitting on other inmates, as Branch later testified.

Alvarado ordered the civilian commissary worker to leave the unit and

cancelled the delivery. Boyd continued to pace back and forth on the first floor.

Meanwhile, defendant and other inmates, assisting staff with commissary duties,

were out of their cells. All inmates refused Alvarado's orders to return to their

cells. With that, Alvarado alerted other officers a fight was imminent.

Boyd began a fist fight with Isaad Jackson and Darryl Watson. Multiple

inmates, including defendant, joined the fray. Alvarado repeatedly ordered the

inmates to return to their cells and "lock in." They did not comply. Following

officer safety protocols, Alvarado exited the pod and observed the fight from

behind a protective window. He witnessed seven inmates, including defendant,

punch, kick, and attack Boyd with various items, including a microwave oven,

a water cooler, and broomsticks. With assistance of two other officers, Alvarado

entered the pod to restore order. Alvarado identified defendant and his co-

defendants as the assailants.

A physician, Dr. Rommel Montilus, also responded and found Boyd

motionless on the floor. He observed Boyd bleeding from the head with labored

A-0249-23
3
breathing. The doctor administered oxygen with an Ambu-bag,1 and Boyd was

transferred to University Hospital in Newark, where Dr. Fariha Sheikh treated

him. Dr. Sheikh diagnosed Boyd with trauma, epidural hematoma, facial

fractures, acute respiratory failure and hypoxia, traumatic brain injury, skull

fractures, orbital floor fractures, and jaw fractures. He remained hospitalized

for eighty-two days, surviving his injuries.

In December 2021, an Essex County grand jury returned an indictment

charging defendant and six other inmates with twenty-one counts, including

conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1) and 2C:11-3(a)(1); first-

degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1); second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree riot,

N.J.S.A. 2C:33-1(a)(3); and third-degree endangering an injured victim,

N.J.S.A. 2C:12-1.2.

The court presided over the jury trial of defendant, Jackson, and Watson

from May through June 2023, while severing the trials of the remaining four

1
An "Ambu-bag" is the propriety name for a hand-held device, similar to a
balloon, used to provide positive pressure ventilation to a patient who is not
breathing or is breathing inadequately.
A-0249-23
4
defendants. At trial, the State called multiple witnesses, including Dr. Montilus,

Dr. Sheikh, and Officer Alvarado. Defendants called David Branch.

As Dr. Montilus took the stand, the prosecutor elicited his credentials and

tendered him as an expert in general medicine. Defendants objected, arguing

the State had hampered their ability to prepare for cross-examination by failing

to disclose the doctor's medical findings and opinions. The trial court permitted

the doctor to testify as an expert in general medicine but restricted the scope of

his testimony to the contents of a one-page report he had prepared at the time of

the incident. The court also permitted the doctor to provide "a medical opinion"

based on his report.

On direct examination, the prosecutor asked Dr. Montilus whether Boyd

would have died but for the resuscitation efforts. Co-defendants' counsel

objected, arguing the question called for speculation and constituted an expert

opinion the defense had not received prior notice of. Defendant's counsel joined

the objection. The court overruled the objection, stating,

Well then let him answer that. Maybe he can answer,
maybe he can't. I mean, I think it's -- again, he's an
expert in general medicine, he was treating him. I think
he's qualified to perhaps make that assessment. He was
there to assess and evaluate the condition that Mr. Boyd
was in at the time. It's fair.

Defense counsel moved for a mistrial based on Dr. Montilus's purportedly

A-0249-23
5
unexpected opinion, renewing prior objections and arguing he had addressed an

issue reserved exclusively for the jury on the attempted murder charge—namely,

that but for medical treatment, Boyd would have died. At a June 1, 2023 hearing,

the court denied the motion. It reasoned Dr. Montilus had not testified about the

cause of the injuries, the identity of the participants, or their intent. Instead, he

"testified merely as to the life-saving measures he and his staff performed on

Mr. Boyd." The court further observed any layperson viewing the incident video

could draw the same conclusion and the testimony was not unduly prejudicial.

When trial resumed, inmate Branch testified, claiming Boyd provoked the

melee. The State subsequently introduced a video that appeared to show that

Boyd did not spit on any specific individual, contradicting Branch's account of

the events.

At the jury charge conference, defense counsel asked the court to instruct

the jury on the lesser-included offense of attempted passion/provocation

manslaughter, arguing Boyd's fighting words, his spitting at other inmates, and

his refusing to return to his cell constituted adequate provocation. The court

conducted a Canfield 2 analysis and concluded a reasonable person would not

have reacted in a similar manner to the alleged provocation. Accordingly, the

2
State v. Canfield, 470 N.J. Super. 234 (App. Div. 2022).
A-0249-23
6
court declined to instruct the jury on the lesser-included offense.

On June 14, 2023, the jury convicted defendant of first-degree attempted

murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1); second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); three counts of fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d); three counts of third-degree

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

acquitted him on all other counts.

Defendant was sentenced in September 2023. The court found

aggravating factors two (the gravity and the seriousness of the harm), three (risk

of reoffending), six (prior criminal record), and nine (need for deterrence)

applicable. See N.J.S.A. 2C:44-1(a)(2), (a)(3), (a)(6), (a)(9). It found

mitigating factor fourteen (defendant was younger than twenty-six at the time

of the offense), N.J.S.A. 2C:44-1(b)(14), but declined to find any other

mitigating factors. The court merged the aggravated assault and possession

counts with the attempted murder count and sentenced defendant to a term of

twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

to run consecutively to his twelve-year sentence stemming from a January 2019

homicide.

A-0249-23
7
On appeal, defendant raises the following arguments:

POINT ONE

THE TRIAL COURT ABUSED ITS DISCRETION BY
PERMITTING DR. MONTILUS TO OFFER AN
EXPERT OPINION WHICH NEITHER WAS
DISCLOSED IN THE DOCTOR'S INCIDENT
REPORT, NOR HELPFUL TO THE TRIER OF FACT.

POINT TWO

THE TRIAL COURT ERRED BY REFUSING TO
INSTRUCT THE JURY AS TO THE LESSER
OFFENSE OF [ATTEMPTED]
PASSION/PROVOCATION MANSLAUGHTER.

POINT THREE

DEFENDANT'S SENTENCE OF TWENTY YEARS
SUBJECT TO THE NO EARLY RELEASE ACT IS
MANIFESTLY EXCESSIVE.

Expert Witness

"We give substantial deference to the trial court's decision as to whether

a witness is qualified to present expert testimony." State v. Rosales, 202 N.J.

549, 562 (2010) (citing State v. Jenewicz, 193 N.J. 440, 455 (2008)). "Thus, the

'court's witness-qualification decision is subject to essentially an abuse-of-

discretion standard of review and will only be reversed for manifest error and

injustice.'" Id. at 562-63 (quoting Jenewicz, 193 N.J. at 455). Similarly, a

decision to grant or deny a motion for mistrial is "entrusted to the sound

A-0249-23
8
discretion of the trial court" and will not be disturbed on appeal absent a clear

showing of an abuse of discretion. State v. Smith, 224 N.J. 36, 47 (2016)

(quoting State v. Harvey, 151 N.J. 117, 205 (1997)).

Defendant renews his trial argument that Dr. Montilus's medical opinion

was undisclosed and improperly addressed an element of attempted murder, a

question reserved for the jury. He contends a video of the melee was sufficient

for the jury to draw its own conclusions, rendering Dr. Montilus's opinion

unnecessary and unduly prejudicial, and, therefore, its admission was reversible

error. The State responds the doctor's testimony constituted a reasonable

inference drawn from statements in the report and the trial court properly

exercised its discretion in admitting it. The State's position is persuasive.

N.J.R.E. 702 governs the admission of expert testimony. It provides: "[i]f

scientific, technical or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify in the

form of an opinion or otherwise." Our Supreme Court has explained:

The Rule has three [basic] requirements for the
admission of expert testimony: (1) the intended
testimony must concern a subject matter that is beyond
the ken of the average juror; (2) the field testified to
must be at a state of the art such that an expert's
testimony could be sufficiently reliable; and (3) the

A-0249-23
9
witness must have sufficient expertise to offer the
intended testimony.

[Jenewicz, 193 N.J. at 454.]

These requirements "are construed liberally" in favor of admissibility. Ibid.

Rule 3:13-3(b)(1)(I) governs the scope of discovery concerning experts to

include:

[the] names and addresses of each person whom the
prosecutor expects to call to trial as an expert witness,
the expert's qualifications, the subject matter on which
the expert is expected to testify, a copy of the report, if
any, of such expert witness, or if no report is prepared,
a statement of the facts and opinions to which the expert
is expected to testify, and a summary of the grounds for
each opinion.

Accordingly, "[w]hen an expert's report is furnished, 'the expert's

testimony at trial may be confined to the matters of opinion reflected in the

report.'" McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.

1987) (quoting Maurio v. Mereck Constr. Co., 162 N.J. Super. 566, 569 (App.

Div. 1978)). "However, the logical predicates for and conclusions from

statements made in the report are not foreclosed" because the adversary is

permitted to discover the basis for the opinion through a myriad of ways,

including cross-examination, interrogatories, and depositions. Id. at 171-72.

In McCalla, the plaintiff brought a products-liability action against a crane

A-0249-23
10
manufacturer. Id. at 163. The defendant proffered a mechanical engineer to

support its contention the crane had no design defects, but the plaintiff objected

to the expert's testimony on the ground the expert report was conclusory and not

based on any disclosed factual data. Id. at 164. The trial court limited the

expert's testimony to "a negation of the claims of [the] plaintiff's expert" and

barred the defendant's expert from testifying "this was a safe machine or that

this machine met the highest standards." Ibid. We reversed, reasoning the

plaintiff "had no right to . . . object to the admission of the materials that were

fairly obtainable through interrogatories or depositions, and which logically

flowed from the expert report already provided." Id. at 172.

Similarly, while Dr. Montilus's testimony that Boyd would have died but

for the oxygen treatment was not explicitly disclosed in the report, it "logically

flowed from the [one-page] report already provided." Ibid. The record evinces

the report Dr. Montilus prepared included "the time, and the description . . . of

the event which occurred around that day." The report described Dr. Montilus 's

observations of Boyd, including his "labored breathing," "unconscious" state, as

well as the medical team's efforts to "resuscitate" Boyd with an Ambu-bag. We

agree with the trial court's observation that as an expert in general medicine, Dr.

Montilus was properly permitted to assess and testify to Boyd's condition at that

A-0249-23
11
time.

In addition, counsel for co-defendant Watson elicited on cross-

examination the facts and data on which Dr. Montilus based his opinion , as the

following colloquy demonstrates:

[Defense counsel]: The difficulty in breathing that Mr.
Boyd was having, what was so different about his that
you were able to opine that it would have led to death?

Dr. Montilus: His respiratory rate . . . one, and his
level of hypoxemia . . . . Those are the reasons and . . .
my level of training, sir. I've been doing this for a long,
long time.

[Defense counsel]: So, you're able to do the evaluation
and say he needs oxygen, right?

[Defense counsel]: Because an individual who has just
gone through trauma, right, who is struggling with
breathing will benefit from additional oxygen, right?
That's just very basic simple, right?

[Defense counsel]: Okay. Was there anything else
beyond that that you saw about him beyond his
breathing difficulties that led you to the conclusion that
this man would die?

Dr. Montilus: His level of respiratory distress was
such that . . . if he wasn't provided protection for his
airway, to protect his airway from the secretion, and
also he wasn't provided enriched oxygen to elevate the

A-0249-23
12
oxygen saturation in his blood, the degree of cerebral
damage -- cervical damage and organ damage that was
sustained would have been very hard to survive with
that.

"Since this inquiry was open to" defendants on cross-examination, "it should not

[be] foreclosed to [the State] on direct examination." McCalla, 215 N.J. Super.

at 172.

Defendant's assertion the video recording allowed the jury "to draw its

own conclusion" and thereby rendered Dr. Montilus's testimony unnecessary is

without merit. The prosecution played for the jury videotaped recordings of the

incident to substantiate Dr. Montilus's evaluation of Boyd and the medical

team's efforts to resuscitate him. The video corroborated the State's position

that Boyd was unconscious with labored breathing, requiring extensive oxygen.

Our courts "have permitted experts, with appropriate qualifications, to

explain the implications of observed behaviors that would otherwise fall outside

the understanding of ordinary people on the jury." State v. McLean, 205 N.J.

438, 460 (2011). That a lay person, as noted by the trial court, "can draw their

own conclusion as to a person who sustained the type of beating and attack" did

not preclude Dr. Montilus from explaining the implications of Boyd's injuries to

a degree of medical certainty. Thus, Dr. Montilus's opinion testimony was

helpful to the jury without usurping its function as the ultimate fact-finder.

A-0249-23
13
Lastly, we are satisfied Dr. Montilus's testimony did not opine on an

element of attempted murder by "effectively telling the jury" the "injuries

inflicted created a substantial risk of death." As the State observes, "a

conviction for attempted murder does not require as one of its elements that any

injury be inflicted." State v. Noble, 398 N.J. Super. 574, 599 (App. Div. 2008).

Moreover, any error resulting from permitting Dr. Montilus to provide opinion

testimony was harmless in light of corroborating evidence supporting the same

conclusion. See State v. Derry, 250 N.J. 611, 636 (2022) (holding any error

resulting from the trial court improperly admitting opinion testimony was

harmless in light of "the overwhelming evidence" against the defendants).

Additionally, Dr. Sheikh specifically testified acute low levels of oxygen

ultimately would have resulted in Boyd's death.

Where, as here, defendant was not unduly prejudiced by Dr. Montilus's

testimony and there is no proof the State intended to mislead the jury, the trial

court properly exercised its discretionary powers in admitting the testimony.

See State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 2011) (holding the

exclusion of improper expert testimony is not mandatory under Rule 7:7-7(b)(1)

but is rather subject to the discretion of the trial court).

We are satisfied the trial court did not abuse its discretion in permitting

A-0249-23
14
Dr. Montilus to provide "a medical opinion" that is "based on his report or notes"

or is corroborated by other admissible evidence. For reasons outlined above,

the trial court did not abuse its discretion in denying the motion for a mistrial.

Lesser-Included Offense

A trial court's "failure to instruct the jury on a lesser included offense that

a defendant has requested" warrants reversal of a defendant's conviction only if

"the evidence provides a rational basis" for the charge. State v. Dunbrack, 245

N.J. 531, 545 (2021) (quoting State v. Savage, 172 N.J. 374, 397-98 (2002)).

A key purpose of charging lesser-included offenses is to guard against the

prospect that "a jury reluctant to acquit defendant might compromise on a

verdict of guilt on the greater offense." State v. Sloane, 111 N.J. 293, 299

(1988). "Where one of the elements of the offense charged remains in doubt,

but the defendant is plainly guilty of some offense, the jury is likely to resolve

its doubts in favor of conviction." Keeble v. United States, 412 U.S. 205, 212-

13 (1973) (emphasis in original); see also State v. Jenkins, 178 N.J. 347, 363-

64 (2004) (sustaining vacation of the defendant's murder conviction because the

trial court's failure to properly instruct the jury on lesser included offenses

constituted reversible error).

Defendant maintains "the passion/provocation instruction was warranted"

A-0249-23
15
because Boyd committed a battery by spitting on the inmates and "instigated" a

"mutual" fight. The State contends Boyd's actions were not directed at

defendant, nor were they sufficient to provoke defendant.

Pursuant to N.J.S.A. 2C:1-8(e), "[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." Although "[a] defendant is

entitled to an instruction on a lesser offense supported by the evidence regardless

of whether that charge is consistent with" his defense theory, "sheer speculation

does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994)

(citations omitted). Thus, a trial court need not charge the jury on attempted

passion/provocation manslaughter at a defendant's request if the charge is

"inconsistent with [his] testimony" and "the State's version of the [events,]" and

"is substantiated by no testimony in the record." State v. Crisantos, 102 N.J.

265, 280 (1986) (emphasis in original).

Pertinently, the passion/provocation offense "contains all the elements of

murder except that the presence of reasonable provocation, coupled with

defendant's impassioned actions, establish a lesser culpability." State v.

Robinson, 136 N.J. 476, 482 (1994).

In our jurisprudence, attempted
passion/provocation manslaughter is comprised of four

A-0249-23
16
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 criteria are
objective, and the latter two are subjective.

[State v. Funderburg, 225 N.J. 66, 80 (2016)
(alterations in original) (quoting State v.
Mauricio, 117 N.J. 402, 411 (1990)).]

The first inquiry is whether a reasonable person in the defendant's position

would have been sufficiently provoked to "arouse the passions of an ordinary

man beyond the power of his control." State v. King, 37 N.J. 285, 301-02

(1962). In other words, "[t]he adequacy of provocation is measured by whether

'loss of self-control is a reasonable reaction.'" Canfield, 470 N.J. Super. at 276

(quoting State v. Foglia, 415 N.J. Super. 106, 126 (App. Div. 2010)). "The

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

insulting, do not constitute adequate provocation to reduce murder to

manslaughter." Crisantos, 102 N.J. at 274 (citations omitted). Although battery

"has traditionally been considered, almost as a matter of law, to be sufficiently

provocative," a physical touching that amounts to "a light blow" does not

constitute adequate provocation. Robinson, 136 N.J. at 492 (quoting Mauricio,

117 N.J. at 414).

A-0249-23
17
Following careful review of the record, we conclude there was no

adequate evidence of provocation to warrant a passion/provocation charge. To

begin, there is a question of whether Boyd was "spoiling for a fight" with

defendant. Boyd's initial statements expressing a desire to fight were made in

Officer Alvarado's presence on the second floor, where none of the defendants

were located. Nothing in the record suggests the remarks were directed at any

specific individual; rather, they appear to have been general in nature. Boyd's

subsequent fighting words were directed to many individuals as he ran about,

spitting and cursing.

Spitting does not "arouse the passions of an ordinary man," King, 37 N.J.

at 301-02, such that he would lose his self-control, Canfield, 470 N.J. Super. at

1. While spitting may constitute a battery, it is of a lesser magnitude than "a

light blow," which courts have consistently held do not constitute adequate

provocation. Robinson, 136 N.J. at 492. Further, "words alone, no matter how

offensive or insulting, do not constitute adequate provocation." Crisantos, 102

N.J. at 274.

In addition, "although mutual combat under certain circumstances can

constitute adequate provocation to reduce murder to manslaughter, the

provocation must be proportionate to the manner of retaliation." State v.

A-0249-23
18
Darrian, 255 N.J. Super. 435, 449 (App. Div. 1992). Most notably, the mutual

combat initially involved only three parties: Boyd, Jackson, and Watson;

defendant joined the fight of his own volition:

[Prosecutor]: When the altercation happened, was it
just Boyd, Watson, and Jackson fighting, or were other
people fighting, too?

[Alvarado]: No. Shortly after they began fighting,
multiple other inmates rushed forward and were
involved.

[Prosecutor]: Who were the other people that were
involved?

....

[Alvarado]: So I think it was Anderson at first, and then
Tyshon Armour, Asencio, Hutchins, and Lockett.

[(Emphases added).]

Finally, while "the assault on Boyd began as a mutual fight," the record

evinces that defendant, along with co-defendants, continued to attack Boyd long

after he was unconscious and motionless. Specifically, while Boyd was

unconscious, defendant punched him, stomped on him, struck him with a juice

container and broomsticks, and threw a water cooler and a microwave at his

head.

Thus, defendant's voluntary participation in the fight and his subsequent

A-0249-23
19
disproportionate response precluded a verdict of attempted passion/provocation

manslaughter. See Darrian, 255 N.J. Super. at 449 ("[I]f a defendant on a slight

provocation attacked the victim with violence out of proportion to the

provocation, the crime is murder.") (citing Crisantos, 102 N.J. at 380 n. 12).

We thus perceive no error in the trial court's articulated reasons for

rejecting an attempted passion/provocation manslaughter charge:

In this particular case, as the case law indicated,
words alone do not rise to a level of provocation that
would be sufficient. So even if the expected testimony
later on is that Mr. Branch testified that Mr. Boyd said,
suck my d*ck, that would not be sufficient passion
provocation under the law for a person to react or to be
justified as a passion provocation.

Spitting, if that's going to come out, would a
reasonable person respond to that provocation in the
way we have here? I don't see it. I just don't see that
under a reasonable person standard or perspective for
the first two elements, whether or not there was
adequate provocation, I just don't see how a reasonable
person would have reacted to such alleged provocation
and whether or not they had time to cool off.

So ultimately since I don't see how any
reasonable person could have reacted to such
provocation based upon State v. Canfield, this court is
not going to permit the lesser included offense of
passion prov[ocation], attempted passion prov[ocation]
manslaughter.

A-0249-23
20
In sum, because there was no rational basis for the attempted

passion/provocation manslaughter charge, the trial court did not err in declining

to submit that charge to the jury.

Sentencing

Before sentence in this case on appeal, defendant pleaded guilty to charges

of conspiracy to commit murder, unlawful possession of a weapon, possession

of a weapon for an unlawful purpose, and receiving stolen property in relation

to a homicide that occurred on January 11, 2019. For those offenses, defendant

was sentenced in February 2023 to a term of incarceration of twelve years

subject to NERA.

Defendant argues in imposing his sentence, the trial court failed to

consider mitigating factors three (strong provocation) and five (victim's

conduct) and "did not adequately consider the real time consequences of the

sentence being imposed" as mandated by State v. Marinez, 370 N.J. Super. 49,

58-59 (App. Div. 2004). The State maintains we should defer to the trial court's

sentencing decision, which was supported by credible evidence and findings

placed on the record.

"Appellate review of a criminal sentence is limited; a reviewing court

decides whether there is a 'clear showing of abuse of discretion.'" State v.

A-0249-23
21
Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512

(1979)).

Appellate courts must affirm the sentence of a trial
court unless: (1) the sentencing guidelines were
violated; (2) the findings of aggravating and mitigating
factors were not "based upon competent credible
evidence in the record;" or (3) "the application of the
guidelines to the facts" of the case "shock[s] the judicial
conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]

In determining whether to impose concurrent or consecutive sentences, a

sentencing court should consider the guidelines delineated in State v.

Yarbough, 100 N.J. 627, 643-44 (1985). Namely, it should consider "whether

the crimes were independent of each other, if separate acts of violence were

involved, if they constituted a single period of aberrant behavior[,] and if

multiple victims were involved." Marinez, 370 N.J. Super. at 59. So long as

the sentencing court "place[d] on the record its statement of reasons for the

decision to impose consecutive sentences, which . . . should focus 'on the

fairness of the overall sentence, and . . . set forth in detail its reasons for

concluding that a particular sentence is warranted,'" this court must defer to the

sentencing court. State v. Torres, 246 N.J. 246, 267-68 (2021) (quoting State v.

Miller, 108 N.J. 112, 122 (1987)).

A-0249-23
22
A review of the sentencing hearing and judgment of conviction reveal that

the trial court consulted the Yarbough guidelines, determined a consecutive

sentence is warranted, and placed on record its reasons for imposing the twenty-

year NERA term. Specifically, the court found:

Yarbough also cautions the [c]ourt that there
shall be no double counting of aggravating factors.
Now, also, the [c]ourt should indicate whether or not
the sentence, the overall fairness of the sentence, if the
[c]ourt's going to impose either a concurrent or
consecutive sentence. . . .

Now, Judge Raven sentenced you earlier this
year, on February 17th, to 12 years, pursuant to NERA
....

This case, which took place at the Essex County
Jail, more than three years later, on September 23rd,
2021, involved, obviously, a separate victim, Mr.
Jayshawn Boyd. There's no similarities whatsoever
between these two cases, so when we look over these
Yarbough factors, [number one] is that there should be
no free crime in a system for which the punishment
shall fit the crime. This, most certainly, if the [c]ourt
were to impose a concurrent sentence, would be, in
essence, a free crime for you.

Now, when we look at these guidelines, [were]
the crimes in their objectives . . . predominantly
independent of each other. They were most certainly
independent of each other. They had nothing to do with
one another. Whether or not they involve separate acts
of violence or threats of violence. Completely separate
acts of violence. Whether or not the crimes were
committed at different times, separate places. They

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were committed at different times, three years apart,
separate places. One was out here in the streets of
Newark, on Hunterdon Street, the other was inside the
confines of the Essex County Jail.

Whether or not the crimes involved multiple
victims. Well, we certainly have separate victims in
these two crimes. There are no similarities between
these two crimes. It would be an injustice if this [c]ourt
were to impose a concurrent sentence on you in light of
all of the Yarbough factors that I just reviewed and that
the Prosecutor set forth. So for that reason, the [c]ourt,
when it does impose its sentence, would be imposing a
consecutive sentence.

Moreover, regarding mitigating factors three and five, the court observed:

Mitigating factor [three] is that you acted under strong
provocation. Again, there was a difference of perhaps
testimony, that Mr. Boyd, who just got to the pod where
you were that very same day, just hours before; yes, he
was walking around outside where he shouldn't have
been; yes, the guard told him to return to his cell; yes,
he was not listening to the guard; and maybe he
mouthed off at you and the others, and for that he took
that initial beating, where he was knocked unconscious.
But again, as I said, that's where the savage part just
began, and he certainly did not provoke anything to
justify what happened to him, so I don't find that you
acted under strong provocation.

....

[Five], that the victim induced or facilitated its
commission. Again, I cannot find that.

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Boyd's actions did not constitute "strong provocation." See N.J.S.A.

2C:44-1(b)(3). The evidence shows defendant chose to join a fight in which he

was not initially involved and continued to assault Boyd with disproportionate

force long after Boyd had lost consciousness. That conduct forecloses any

provocation claim. Although Boyd may have engaged in mutual fighting with

Jackson and Watson, he did not initiate or facilitate the commission of

defendant's conduct. See N.J.S.A. 2C:44-1(b)(5).

Because the sentencing court properly identified and weighed the

aggravating and mitigating factors, assessed the overall fairness of the sentence

imposed, and placed its reasoning on the record, this court may not substitute its

judgment for that of the sentencing court. Torres, 246 N.J. at 267-68.

In sum, we are satisfied the trial court did not abuse its discretion by

permitting Dr. Montilus to offer his opinion testimony and denying the motion

for mistrial on that ground. The trial court also did not err in declining to instruct

the jury on attempted passion/provocation manslaughter and did not abuse its

discretion in imposing sentence.

Affirmed.

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