STATE OF NEW JERSEY v. HILTON SALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2293-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HILTON SALES a/k/a DAVID

SALES,

Defendant-Appellant.

________________________________

December 2, 2011

Submitted November 14, 2011 - Decided

Before Judges A. A. Rodr guez, Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2184.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The State concedes that the judge committed plain error by not charging self defense.1 We reverse.

Defendant, his girlfriend (Jennifer), and their son, lived together in an apartment with Jennifer's sister, Giovanna. During an attempt to move out of the residence, defendant and Giovanna engaged in a physical altercation. Defendant injured Giovanna by striking her with a wooden stick from part of the furniture that he was moving.

As a result of the incident, defendant was indicted on charges of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1)(Count One),2 fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Two), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Three). At trial, defendant asserted that he used force to protect himself, Jennifer, and their son. The trial judge charged the jury:

The [i]ndictment charges that the [d]efendant has committed the crimes of aggravated assault [Count One] . . . as well as possession of a weapon for an unlawful purpose [Count Three].

The [d]efendant contends that if the State proves he used or threatened to use force upon another, that such force was justifiably used for a self defense.

During deliberations, the jury asked the judge, "[H]ow does the occurrence of self-defense affect the determination of guilty or not guilty in each of the three counts[?]" The judge explained to the attorneys that the justification defense of self-defense did not apply to Count Two. Defense counsel disagreed. The judge then recharged the jury but did not include the defense of self-defense for Count Two.

The jury acquitted defendant of the two more serious charges but found him guilty of Count Two. The judge ordered defendant to pay mandatory fines and penalties, but did not impose a custodial sentence.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT'S ADMITTEDLY ERRONEOUS JURY INSTRUCTIONS, WHICH PROHIBITED THE JURY FROM CONSIDERING THE DEFENSES OF SELF-DEFENSE AND DEFENSE OF OTHERS WITH REGARD TO THE UNLAWFUL POSSESSION OF A WEAPON COUNT, DENIED DEFENDANT A FAIR TRIAL

POINT II

THE JURY REACHED AN INCONSISTENT VERDICT DUE TO INCORRECT JURY INSTRUCTIONS

POINT III

DEFENDANT WAS DENIED A FAIR TRIAL BY THE IMPROPER ADMISSION OF OTHER CRIMES EVIDENCE

POINT IV

THE REPEATED ADMISSION OF INADMISSIBLE HEARSAY TESTIMONY DENIED DEFENDANT A FAIR TRIAL

POINT V

DEFENDANT WAS PREJUDICED BY THE LIMITED READ-BACK OF HIS TESTIMONY

It is well-settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004). Here, the jury charge was flawed because the judge omitted the defense of self-defense on Count Two. Our Supreme Court has stated:

If a person possesses an instrument for a legitimate purpose and makes immediate use of that instrument as a weapon in order to fight off an impending threat, then, and only then, is self-defense a justification to a [N.J.S.A. 2C:39-5d] offense. In such a case, the person would not have possessed the implement to use it as a weapon but for its proper purpose. Absent possession of the implement as a weapon, a person has not committed a [N.J.S.A. 2C:39-5d] offense.

[State v. Kelly, 118 N.J. 370, 381 (1990).]

Thus, self-defense was available to defendant in this case because he testified that he possessed the wooden stick to fight off Giovanna and to protect his family.

1 The State should have notified defense counsel of its concession, and one or the other should have moved for summary reversal of the conviction.

2 Prior to trial, the State amended Count One to third-degree aggravated assault.

3 We need not reach the other arguments raised by defendant.