SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1538-00T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHELLE TIERNEY,
Defendant-Appellant.
Argued October 23, 2002 - Decided January 10,
2003
Before Judges King, Lisa and Fuentes.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, 98-10-1493-I.
Robert L. Sloan, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney; Mr. Sloan, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (Peter C.
Harvey, Acting Attorney General, attorney; Mr.
Yomtov, of counsel and on the brief).
The opinion of the court was delivered by
LISA, J.A.D.
Tried to a jury, defendant was convicted of first-degree
knowing or purposeful murder, N.J.S.A. 2C:11-3a(1), (2) (count
one), and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4d (count two). The trial judge sentenced
defendant for murder to thirty years imprisonment without
eligibility for parole and for the weapons offense to a concurrent
four-year term. Appropriate mandatory monetary penalties were also
imposed. On appeal, defendant contends:
POINT I
THE JURY INSTRUCTIONS ON SELF-DEFENSE AND
PASSION/PROVOCATION MANSLAUGHTER FAILED TO
PROVIDE FACTUAL CONTEXT FOR FAIR CONSIDERATION
OF BATTERED WOMAN'S SYNDROME, IN VIOLATION OF
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A
FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J.
CONST. (1947) ART. I, PARS. 1, 9, 10. (Not
Raised Below).
POINT II
JURY INSTRUCTIONS THAT FAILED TO EXPLAIN HOW
"IMPERFECT SELF-DEFENSE" COULD RESULT IN A
VERDICT OF AGGRAVATED MANSLAUGHTER, RECKLESS
MANSLAUGHTER, OR PASSION/PROVOCATION
MANSLAUGHTER RATHER THAN MURDER DEPRIVED
DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW
AND A FAIR TRIAL. U.S. CONST. AMEND. XIV;
N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
(Not Raised Below).
POINT III
THE CONVICTION FOR POSSESSION OF A WEAPON FOR
AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED.
(Not Raised Below).
The State concedes Point III, and we agree that count two should be
merged with count one. See State v. Diaz,
144 N.J. 628, 639-42
(1996). We vacate the sentence on count two and remand for entry
of an amended judgment of conviction. We reject defendant's
remaining contentions and affirm the conviction on count one.
Defendant killed Thomas Harsell, her live-in boyfriend and the father of their sixteen-month-old child. She does not deny the homicidal act. The relationship between defendant and Harsell was a volatile one, marked by incidents of verbal and physical altercations. Harsell was thirty-nine-years-old and physically larger and stronger than defendant, who was twenty-five-years-old. On the day of the homicide, August 30, 1998, defendant, Harsell and their child spent the day at the beach. On the way home they argued, and defendant claims Harsell punched her in the face while in the car. The argument continued at home and included physical striking by both parties. Defendant went to the kitchen and called her brother, Michael Tierney, requesting that he come and get her. Defendant acknowledges that she struck Harsell in the head several times with the phone. According to Jeremy Rutan, Harsell's nephew and a resident of the same household, Harsell came out of the kitchen holding his head, which was bleeding profusely, exclaiming "You bitch. You bitch. You bitch."
Harsell's brother, Robert Harsell, was also a resident of the household and was present during these events. He was downstairs when he heard the argument coming from upstairs. He was accustomed to defendant and his brother fighting and said to himself "here we go again." Robert heard what sounded like "someone . . . wrestling on the floor." Robert saw his brother bleeding from the head, but when his brother re-entered the house, Robert went back downstairs because he did not want to "interfere" in the fight.
Michael Tierney and a friend, Paul Dixon, arrived. Michael and Harsell argued outside. Michael was angered that Harsell had struck his sister, and he informed Harsell he was getting her out of there. Harsell told Michael to leave, that it "was none of his business." Defendant came outside, angry, and began striking Harsell in the face, yelling "You won't hit me in front of my brother now." Michael instructed his sister to go inside and get her belongings. When she went in, Michael and Harsell engaged in a physical altercation in which Dixon participated.
When defendant emerged from the house, she was carrying a knife with an eleven-inch blade. She approached Harsell and her brother, who were on the front steps. Dixon took the knife from defendant and placed it on the front seat of Michael's car. Dixon then escorted defendant to the back seat of Michael's car. Harsell and Michael continued to argue. They came over to the car. According to defendant, Harsell reached in and punched her in the face. While Harsell was standing outside the car with his back to the car, continuing to converse with Michael, defendant retrieved the knife from the front seat and stabbed Harsell once in the back, causing his death. Michael and Dixon immediately entered the car and drove off with defendant. Defendant's recollection is that Dixon was already in the car when she stabbed Harsell.
Defendant testified and described how Harsell repeatedly kicked, punched, smacked and choked her that evening. She called her brother to come and get her and the child because she was "in fear of [her] life." She stated Harsell threatened earlier in the evening that if she left he would kill her and she would never again see their child. Throughout the incident, Harsell was attempting to prevent her from leaving. She also described prior incidents where they fought physically, insisting Harsell was always the initiator. She acknowledged stabbing Harsell on one occasion in the chest with scissors. On another occasion she acknowledged cutting Harsell's tongue with the same knife with which she later killed him. She stated he placed the knife to his face because he was upset and stated he wanted to die, and she pushed it causing his injury. Defendant acknowledged that Harsell never used or threatened the use of any weapons on the prior occasions or the night of the killing.
Defendant described on direct examination her reasons for stabbing Harsell:
Q And how badly do you think he was going to hurt you?
A I don't know how bad he was going to hurt me but I felt he was really going to hurt me bad.
Q Did you think he was going to do something to your brother?
A He was stopping my brother from getting in the car.
Q What was your brother trying to do?
A Get in the car.
Q And what was the purpose of getting in the car?
A To take me out of there.
Q And why do you want to leave?
A Because Tom was beating on me.
The following was elicited on cross-examination:
Q And when your brother and Paul Michael
Dixon got there after a while you were able to
safely get into the car, correct?
A Yes.
. . . .
Q Your brother wasn't injured. Paul
Michael Dixon was there to help you and
despite that you felt it necessary to stab Tom
Harsell in the back?
A Yes.
Q And you knew what you were doing when
you stabbed him in the back?
A I was trying to leave.
Q You knew you were stabbing him when
you stabbed him?
A I remember having the knife in my
hand. I don't remember the actually stabbing.
Q You stabbed him purposely, correct?
A Yes.
Q Your intention was to stab him?
A My intention was to leave.
Q Your intention was to stab him when
you stuck that knife in his back, correct?
A My intention was to injure him--
[Defense Counsel]: Objection.
A --so I could leave. He wouldn't allow
my brother to get in the car.
On redirect:
Q Your intention on August 30, 1998, was
it to kill him?
A No, it was not.
Q And what was the purpose of you doing
what you did?
A I wanted to leave. He was preventing
me from leaving.
Both sides presented psychological experts on battered woman's
syndrome. Dr. Marsha Kleinman, testifying for the defendant,
defined the syndrome as
a woman who is 18 years of age or older who is
or has been in a relationship in which she was
subjected to psychological abuse which means
name calling, verbal put-downs, humiliation,
where there is excessive possessiveness and/or
jealousy, where the batterer is excessively
controlling of her whereabouts. There may or
may not be physical or sexual abuse . . . .
It's a relationship in which somebody is
threatened with future harm for not doing what
the person wants them to do.
She further testified that to establish the syndrome, there must be
at least two cycles of abuse. First, there is a period in which
tension builds up until there is a violent outburst. This is
followed by the batterer's apology, leading the victim to believe
he will change and things will be better, which they are for a
time. Then tensions begin to build again and the cycle repeats
itself.
With respect to a battered woman who kills, Dr. Kleinman
stated that an escalation of violence, worse than on previous
occasions, normally precedes the victim's reaction to kill her
batterer. Battered woman's syndrome is used to explain not only
why a woman does not leave an abusive relationship but also why she
has reason to fear for her life. Dr. Kleinman opined that
defendant's relationship with Harsell fit the description of
battered woman's syndrome.
Dr. Sandra L. Morrow testified for the State. She
substantially agreed with the definition of battered woman's
syndrome and the need for at least two cycles as described by Dr.
Kleinman. Dr. Morrow emphasized, however, that for the syndrome to
apply, the woman "must feel entrapped and unable to escape. She
must have a desire to escape the situation, to not be in an abusive
relationship any longer, and she must feel that she is unable to
escape for whatever reason." In an interview defendant expressed
to Dr. Morrow that her relationship with Harsell "was the greatest
relationship she ever had." Harsell never told defendant how to
dress or with whom she should or should not talk or associate. He
never restricted her use of the phone or prevented her from coming
or going as she pleased.
Dr. Morrow opined that defendant did not suffer from battered
woman's syndrome. When asked what factors related to the syndrome
she found to be lacking, she replied:
I did [n]ot find cycles to have been
occurring, cycles of domestic violence. I did
not find sex abuse to be occurring. I did not
find consistent threats to hurt or kill
herself by her partner. I did not find there
to be excessive jealously, isolation,
possessiveness, keeping her isolated from
other people. I did not find what's called
correlates of violence in the partner, the
partner had been abusing animals or abusing
other people on a routine basis or abusing
children. There was no history I found in
this investigation to indicate he was someone
who did that. Those were all absent. Those
are many of the things one looks for.
We note defendant's pertinent trial testimony on cross-
examination:
Q You never feared Tom was going to kill
you prior to that night?
A No.
Q Prior to this time you never believed
Tom was going to kill you?
A No.
Q You never were in fear of your life?
A No.
Q Tom never restrained you in the
house--
A No.
Q --prior to this day?
A No.
Q You always could come and go as you
wanted?
A Yes.
Q You were able to call people?
A Yes.
Q You were able to see people--
A Yes.
Q --if you wanted to?
A Yes.
Q In fact you did see people?
A Yes.
Q People came to your house?
A Yes.
Q You associated with them?
A Yes.
Q Tom never tried to stop you?
A No.
Q So it was just on this one day you
believed Tom was going to kill you?
A Yes.
Defendant argues on appeal that the jury instructions on self-
defense and passion/provocation manslaughter were deficient because
they failed to provide a factual context for fair consideration of
battered woman's syndrome. Defendant did not object to the
instructions in the trial court, R. 1:7-2, nor did defendant
proffer any requests for instructions, R. 1:8-7. Indeed, on
several occasions throughout the trial, Judge DeVesa invited the
parties to submit requests to charge, and he furnished the parties
with his tentative charges. Defense counsel consistently expressed
his approval of the charges as framed by the judge.
Accordingly, our review is under the plain error standard, and
we will disregard the alleged error unless it is "clearly capable
of producing an unjust result." R. 2:10-2. "Under that standard,
defendant has the burden of proving that the error was clear and
obvious and that it affected [her] substantial rights." State v.
Morton,
155 N.J. 383, 421 (1998), cert. denied,
532 U.S. 931,
121 S. Ct. 1380,
149 L. Ed.2d 306 (2001). The error claimed must be
so egregious that it "rais[es] a reasonable doubt as to whether the
error led the jury to a result it otherwise might not have
reached." State v. Macon,
57 N.J. 325, 336 (1971).
Where, as here, the claimed error pertains to a portion of the
jury charge, the charge must be examined as a whole to "determine
its overall effect." State v. Wilbely,
63 N.J. 420, 422 (1973).
In considering a jury charge, plain error is "legal impropriety in
the charge prejudicially affecting the substantial rights of the
defendant sufficiently grievous to justify notice by the reviewing
court and to convince the court that of itself the error possessed
the clear capacity to bring about an unjust result." State v.
Hock,
54 N.J. 526, 538 (1969), cert. denied,
399 U.S. 930,
90 S.
Ct. 2254,
26 L. Ed.2d 797 (1970).
Evidence of domestic abuse is relevant to a claim of self-
defense. State v. Kelly,
97 N.J. 178, 197 (1984). Expert
testimony relating to battered woman's syndrome is germane to the
jury's assessment of the subjective honesty as well as the
objective reasonableness of a defendant's belief that deadly force
was necessary to protect herself against death or serious bodily
harm. Id. at 202-04. Expert testimony is useful to refute common
misconceptions concerning evidence of prior abuse and the reaction
of battered women. Ibid. The Court likewise recognized the
importance of battered woman's evidence on the issue of
passion/provocation manslaughter:
It is well settled that when there is evidence
of prior physical abuse of defendant by the
decedent, the jury must be told that a finding
of provocation may be premised on "a course of
ill treatment which can induce a homicidal
response in a person of ordinary firmness and
which the accused reasonably believes is
likely to continue. State v. Guido,
40 N.J. 191, 211 (1963). The jury must be instructed
"to consider not only decedent's conduct and
threats that night, but also his prior
mistreatment of defendant." State v. Lamb,
71 N.J. 545, 551 (1976).
[State v. Kelly, supra, 97 N.J. at 218-19.]
Defendant does not contend that she was restricted in her
ability to present lay and expert testimony regarding prior abuse
and the battered woman's syndrome. She contends the judge's
"passing reference" to this evidence was inadequate to properly
apprise the jury of its significance. Judge DeVesa charged the
jury, following the Model Jury Charges, on self-defense, defense of
another (defendant's brother), and passion/provocation
manslaughter. He supplemented the charge with specific references
to the alleged prior abuse of defendant by Harsell and the battered
woman's syndrome evidence.
The charge included a N.J.R.E. 404(b) limiting instruction:
Now, an example of that in this case is
the evidence that has been introduced that the
defendant and Thomas Harsell have assaulted
each other during the course of their
relationship. Normally such evidence is not
permitted under our rules of evidence and this
is because our rules specifically exclude
evidence that a defendant has committed
uncharged crimes, wrongs, or acts when it is
offered only to show that a defendant has a
disposition or a tendency to do wrong and
therefore must be guilty of the charges in the
present case.
However, our rules do permit evidence of
uncharged crimes, wrongs, or acts when the
evidence is used for some other purpose. Now
in this case the evidence, if you choose to
believe it and, remember, when I comment on
the evidence, the first determination you have
to make as jurors is whether you believe that
that's what the evidence has shown or hasn't
shown. But in any event in this case that
evidence of this prior violence if you choose
to believe it has been introduced only for one
specific narrow purpose and that is to
establish the honesty and reasonableness of
the defendant's belief and the need to use
deadly force for self protection and the
protection of her brother on the date of the
homicide.
Now whether this evidence does, in fact,
support that specific purpose for which it has
been offered is for you to decide. You may
decide that the evidence does not support this
purpose and it is not helpful to you at all.
In that case you may disregard this evidence.
On the other hand, you may decide that the
evidence does support the purpose for which it
has been offered and you may use it for that
specific purpose and that purpose alone.
What you may not do is use the evidence
to decide that this defendant has a tendency
to commit crimes or that she is a bad person.
That is, you may not decide that just because
you are satisfied that she had previously
assaulted Thomas Harsell she must be guilty of
the crimes in question in this trial. I have
admitted the evidence of prior violence or
prior assaults only to help you decide the
specific question of the honesty and
reasonableness of the defendant's beliefs to
use deadly force on the evening in question.
You may not consider it for any other purpose
and may not find the defendant guilty of the
crimes charged simply because she had
assaulted Thomas Harsell in the past.
[Emphasis added.]
In charging murder-passion/provocation manslaughter the judge
charged that for defendant to be guilty of murder, the State must
prove beyond a reasonable doubt that defendant did not act in the
heat of passion resulting from a reasonable provocation:
In order for the State to carry its
burden it must prove beyond a reasonable doubt
that the provocation was not sufficient to
arouse the passions of an ordinary person
beyond the power of her control. In this
regard words alone do not constitute adequate
provocation. On the other hand, a threat with
a weapon, a significant physical confrontation
or a prolonged course of physical abuse by the
deceased that the defendant reasonably
believed would continue might be considered
adequate provocation. Again, the State must
prove that provocation was not adequate.
. . . .
In determining whether the State has proven
the defendant did not act in the heat of
passion resulting from reasonable provocation
you may also consider in this regard the
testimony that you have heard relating to the
battered women's syndrome.
[Emphasis added.]
The self-defense charge explained that the use of deadly force
may be justified only to defend against force or the threat of
force of nearly equal severity and is not justified unless the
defendant reasonably believes that such force is necessary to
protect herself against death or serious bodily injury. The charge
included the following:
A reasonable belief is one which would be
held by a person of ordinary prudence and
intelligence situated as this defendant was.
Self-defense exonerates a person who uses
force in the reasonable belief that such
action was necessary to prevent his or her
death or serious injury even if that belief is
later proven to be mistaken. Accordingly, the
law requires only a reasonable belief, not
necessarily a correct, judgment.
In this regard, evidence has been
introduced explaining the battered women's
syndrome. You may consider this evidence for
the purpose of determining whether the
defendant honestly and reasonably believed
that deadly force was necessary to protect
herself against Thomas Harsell.
[Emphasis added.]
Judge DeVesa conducted a comprehensive charge conference. See
R. 1:8-7(b). Prior to the conference, the judge furnished both
counsel with complete copies of the proposed charge as prepared by
the judge. He reviewed it in detail, with references to applicable
case law pertaining to the issue now raised on appeal. See State
v. Gartland,
149 N.J. 456 (1997); State v. Coyle,
119 N.J. 194
(1990); State v. Guido,
40 N.J. 191 (1963). Both counsel expressed
their approval. When the judge inquired whether counsel wished for
him to summarize the testimony in his jury charge, the prosecutor
replied in the negative, and defense counsel replied, "I agree with
[the prosecutor]. I believe this jury has been attentive and I
don't think it's necessary in this case."
We are satisfied that the charge as a whole properly guided
the jury to consider evidence of prior abuse and of battered
woman's syndrome in its evaluation of defendant's claims of self-
defense and reasonable provocation. The charge adequately
instructed the jury to consider alleged prior abuse and its effect
on defendant, as well as the events on the occasion of the
homicide, in evaluating both claims by defendant. This charge does
not suffer from infirmity identified in State v. Gartland, where
the judge instructed the jury to consider evidence of prior abuse
in determining the issue of provocation but did not charge that
such evidence should be considered in determining the issue of
self-defense. State v. Gartland, supra, 149 N.J. at 472-73.
We further note that defense counsel argued vigorously in
summation the self-defense theory, incorporating the battered
woman's syndrome aspect:
Self-defense. That's what this case is
all about. In my opening I said a police
officer in the line of duty, he kills, that's
a homicide, but many times, oftentimes it's a
justifiable homicide. An intruder in a home
comes into a home threatens one's family, puts
someone in immediate terror of getting hurt,
that person gets killed. That's a homicide.
That's a justifiable homicide. A man beating
a woman relentlessly, not allowing her to
leave, beating her brother, beating the
daylights out of anyone getting in his way,
ignoring everything, an out of control
individual is what she was dealing with. What
was in her mind. This is the first time she
had ever been threatened to be killed. First
time she had ever lost her child. You don't
have to be a genius to figure this out,
members of the jury. That's supported by Dr.
Kleinman.
[Emphasis added.]
"The argument of counsel, although not a substitute for a
correct charge, can mitigate the prejudicial effect of an erroneous
charge." State v. Morton, supra, 155 N.J. at 423. It is not plain
error when jury instructions are not incorrect but merely capable
of being improved. State v. Delibero,
149 N.J. 90, 106-07 (1997).
Defendant's failure to "interpose a timely objection constitutes
strong evidence that the error belatedly raised here was actually
of no moment." State v. White,
326 N.J. Super. 304, 315 (App. Div.
1999), certif. denied,
163 N.J. 397 (2000).
In view of the evidence presented and arguments made by both
parties, and the charge given, we are satisfied the jury understood
the significance of the alleged prior abuse and battered woman's
syndrome. Any suggestions defendant now makes that could have
improved the charge by making it more detailed and specific do not
render the charge erroneous. We find no error, and, certainly, in
light of the extensive evidence and arguments presented by the
parties, no plain error.
We recognize that accurate and understandable jury
instructions in criminal cases are essential to a defendant's right
to a fair trial and that it is sometimes necessary to go beyond the
Model Jury Charges to properly guide the jury. State v.
Concepcion,
111 N.J. 373, 379 (1988). "[T]he better practice is to
mold the instruction in a manner that explains the law to the jury
in the context of the material facts of the case." Ibid.
Nevertheless, "not every failure to do so is fatal." State v.
Bilek,
308 N.J. Super. 1, 10 (App. Div. 1998) (citing State v.
Baker,
303 N.J. Super. 411, 414 (App. Div.), certif. denied, 151
N.J. 470 (1997)); see also State v. Morton, supra, 155 N.J. at 422
(holding that the facts were neither too complex nor confusing to
require intricate discussion in the charge); State v. White, supra,
326 N.J. Super. at 315 (holding "the charge given, as a whole, was
consistent with the factual theories advanced by the parties").
In this case, there was no need for explanation beyond that
given by the trial judge, either in reference to the facts of the
case or in a more detailed explication of the legal principles.
Defendant expressly declined the opportunity to propose further
explanation in either regard. The charge appropriately explained
the law in accordance with the theories of the case as put forward
by the parties through their evidence and arguments.
We next consider defendant's argument that failure to instruct the jury on principles of imperfect self-defense constitutes reversible error. No such charge was requested in the trial court, and we thus evaluate the argument under the plain error principles expressed in Part II of this opinion. Defendant argues the jury should have been instructed that an honest but unreasonable belief (imperfect self-defense) that she needed to resort to the use of deadly force to protect herself could be the basis for finding a lesser form of homicide than murder.
In order to establish a justification defense, our Criminal Code requires an honest and reasonable belief in the necessity to use force. State v. Bowens, 108 N.J. 622, 630 (1987); State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997). Imperfect self- defense means "an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable." State v. Bowens, supra, 108 N.J. at 628.
Imperfect self-defense is not a recognized defense in New Jersey. State v. Branch, 155 N.J. 317, 329 (1998); State v. Bowens, supra, 108 N.J. at 641. However, the imperfect self- defense theory can be relevant to a defendant's state of mind. State v. Bowens, supra, 108 N.J. at 641. For example:
If a defendant subjectively thinks that self- defense is necessary but does not intend fatal injury, in either the sense of knowledge or purpose, such evidence is relevant to the State's case on that issue. If such a defendant is aware that his or her acts create a risk of serious harm but unreasonably disregards that risk, then, if the essential elements of the crime are present, the defendant can be found guilty of manslaughter . . . instead of murder.
[Ibid.]
However, because the Code does not provide an independent category of justification for imperfect self-defense, the trial court "need not charge separately that 'imperfect self-defense would serve to reduce murder to an unspecified degree of manslaughter.'" State v. Coyle, supra, 119 N.J. at 228. The Court found no error with the trial court's omission of a charge on imperfect self-defense, especially when the charges on purposeful murder, aggravated manslaughter, reckless manslaughter and passion/provocation manslaughter properly encompassed all issues. Ibid. That is the situation in the case before us.
We find defendant's reliance on State v. Pridgen, 245 N.J. Super. 239 (App. Div), certif. denied, 126 N.J. 327 (1991), unpersuasive. This case is more akin to State v. Vasquez, 265 N.J. Super. 528, (App. Div.), certif. denied, 134 N.J. 480 (1993). In Pridgen, defendant, although indicted for murder, was convicted of aggravated manslaughter. State v. Pridgen, supra, 245 N.J. Super. at 241. Defendant requested charges on all lesser included offenses to murder and imperfect self-defense. Id. at 244. The trial court refused to instruct the jury on passion/provocation manslaughter and imperfect self-defense. Id. at 245. We held it was error for the trial court to not explain the impact of imperfect self-defense on a murder charge. However, because defendant was convicted of aggravated manslaughter instead of murder, defendant suffered no harm. Id. at 248.
Unlike Pridgen, appellant here did not request a jury instruction on imperfect self-defense. Moreover, similar to Coyle, and Vasquez, "[i]n light of the fact that the trial court instructed the jury on murder, aggravated manslaughter, passion/provocation manslaughter, and reckless manslaughter, no need arose for the judge to charge on imperfect self-defense." Vasquez, supra, 265 N.J. Super. at 552. We find no error in the judge's failure to sua sponte charge imperfect self-defense.
The matter is remanded for entry of an amended judgment of conviction reflecting that count two is merged with count one. In all other respects the judgment of conviction is affirmed.