STATE OF NEW JERSEY v. SANTEENO D. GRANT

NOT FOR PUBLICATION WITHOUT THE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-0054-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SANTEENO D. GRANT,

        Defendant-Appellant.

_______________________________

              Submitted January 8, 2018 – Decided February 5, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              15-03-0273.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Paul Halligan, Assistant
              Deputy Public Defender, of counsel and on
              the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Amanda E. Nini,
              Assistant Prosecutor, on the brief).

PER CURIAM

        In 2016, defendant Santeeno D. Grant was convicted by a

jury of unlawful possession of a weapon (knife), 
N.J.S.A. 2C:39-
5(d), and sentenced to one year of probation.      He appeals from

his conviction, asserting the trial court erroneously admitted

prior bad act evidence and failed to provide a jury instruction

on self-defense.   We affirm.

                                  I

    The pertinent evidence adduced at trial was as follows.

Defendant was employed as a maintenance worker at a hospital.

Defendant's co-worker testified that, on the day of the subject

incident, he overheard defendant and his supervisor arguing over

the quality of defendant's work.      Thereafter, defendant entered

a room the co-worker was cleaning.      Defendant wanted to speak to

the supervisor, and asked the co-worker to call the supervisor

on the co-worker's cellular telephone.      The co-worker obliged,

and defendant and the supervisor spoke by phone.

    After the telephone conversation ended, defendant began to

pace the floor and appeared agitated.      Defendant stated to the

co-worker, "You know what, anybody can get it," which the co-

worker interpreted as a threat.       Defendant then reached into a

duffle bag he had carried into the room, pulled out a shotgun,

and instructed the co-worker to call the supervisor again on the

telephone or he would hit the co-worker on the head.      The co-

worker dialed the supervisor's telephone number and, as he

called, walked toward the door.       When the supervisor did not
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answer, the co-worker fled through the door and escaped into a

stairwell.

    While in the stairwell, defendant encountered and informed

the supervisor defendant had a gun.   The two then left the

building.    Although initially the coworker did not contact the

police or security personnel at the hospital, after discussing

the matter with the supervisor, the co-worker advised security

personnel of defendant's conduct, and a security officer

contacted the police.    The co-worker testified he did not call

the police at first because, although he did not know defendant,

he feared if he did so, defendant or another might retaliate

against him for being a "snitch."

    Defense counsel objected to the co-worker's use of the word

"snitch," explaining the co-worker's testimony suggested

defendant was a danger to him.    The court noted the co-worker

was merely explaining why he delayed in calling the police, but

the court ultimately ruled the co-worker could explain what the

word "snitch" meant to him.    The co-worker then testified a

"snitch" is one who "tells on a certain individual after they

committed a crime, and anything . . . can happen to that

snitch."    He further stated that, in his community, snitches are

viewed as "a threat to society that needs to be removed."


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    A hospital security officer testified that, after security

personnel were notified of defendant's conduct and the police

were contacted, the security officer found defendant in the

hospital.    The security officer engaged defendant in

conversation until the police arrived; defendant was unaware the

police had been summoned.

    One of the police officers who responded testified he

approached and spoke to defendant, who was cooperative.    The

officer noticed a bulge in defendant's front pocket, out of

which extended a black handle.    After conducting a pat-down

frisk of defendant, the officer removed a knife from that

pocket.   The shotgun was not in defendant's possession.

Defendant later advised the police he carried the knife because

he had been the victim of a violent crime in the past.

    As previously noted, defendant was found guilty of fourth-

degree possession of a weapon, specifically, a knife.

                                 II

    On appeal, defendant asserts the following arguments for

our consideration:

            POINT I - THE TRIAL COURT ERRED IN FAILING
            TO CHARGE THE JURY ON SELF-DEFENSE AND
            THEREFORE DENIED GRANT A FAIR TRIAL. THE
            GUILTY VERDICT ON THE POSSESSION OF A KNIFE
            CHARGE MUST BE REVERSED AND GRANT GIVEN A
            NEW TRIAL. (NOT RAISED BELOW).

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         POINT II - THE PROSECUTION'S INTRODUCTION
         AND EXTENSIVE USE OF PRIOR BAD ACT EVIDENCE
         VIOLATED STATE v. COFIELD.

    We first address defendant's contention the court erred by

failing to charge the jury on self-defense, warranting the

reversal of his conviction and a new trial.

    
N.J.S.A. 2C:39-5(d), the statute defendant was convicted of

violating, states in relevant part:   "Any person who knowingly

has in his possession any . . . weapon under circumstances not

manifestly appropriate for such lawful uses as it may have is

guilty of a crime of the fourth degree."   The applicable

provision of the use of force statute, 
N.J.S.A. 2C:3-4(a),

provides in pertinent part:

         [T]he use of force upon or toward another
         person is justifiable when the actor
         reasonably believes that such force is
         immediately necessary for the purpose of
         protecting himself against the use of
         unlawful force by such other person on the
         present occasion.

         [Emphasis added].

    Here, the only reference to self-defense during the trial

was that defendant possessed the knife because he had been the

victim of a violent crime in the past.   There was no evidence he

possessed the knife to protect himself against any immediate

threat; he was in possession of the knife to protect himself in

the event the need to use the knife in self-defense arose.
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Nonetheless, he claims this reason alone required the court to

instruct the jury on self-defense.

    Before the trial court, defendant neither requested a

charge on the use of force nor objected to the court's proposed

jury charge before it was read to the jury.   Accordingly, we

review this issue through the lens of the plain error rule.      See

R. 2:10-2.   "Regarding a jury instruction, 'plain error requires

demonstration of legal impropriety in the charge prejudicially

affecting the substantial rights of the defendant and

sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result.'"   State v.

Montalvo, 
229 N.J. 300, 321 (2017) (quoting State v. Chapland,


187 N.J. 275, 289 (2006)).

    In general, if there is evidence raising the issue of self-

defense, then the jury must be instructed on self-defense.

State v. Munroe, 
210 N.J. 429, 446 (2012) (quoting State v.

Kelly, 
97 N.J. 178, 200 (1984)).   However, "[s]elf-defense does

not excuse possession of a weapon in violation of [N.J.S.A.

2C:39-5(d)] except in 'those rare and momentary circumstances

where an individual arms himself spontaneously to meet an

immediate danger.'"   State v. Kelly, 
118 N.J. 370, 372 (1990)

(emphasis added) (citing State v. Harmon, 
104 N.J. 189, 208-09
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(1986)).   Only under those limited circumstances "should the

justification afforded by 
N.J.S.A. 2C:3-4 be considered."      State

v. Harmon, 
104 N.J. 189, 208-209 (1986).

    In Kelly, the defendant was concerned she might encounter

an old boyfriend on the street who had been physically violent

toward her.   Thus, she armed herself with a carpet-cutting

knife.    After she passed the boyfriend on a street corner, he

repeatedly punched defendant; in turn, she defended herself by

slashing him with the knife.   She was charged with unlawful

possession of the knife pursuant to 
N.J.S.A. 2C:39-5(d) and, at

the close of evidence at trial, requested a charge on self-

defense.   The trial court denied her request.

    The Supreme Court affirmed our decision to affirm the trial

court.    The Court noted that if the defendant had "seized the

weapon spontaneously and used it to defend herself against a

life-threatening attack, then, she would not have possessed the

weapon for a manifestly inappropriate purpose."     Kelly, 
118 N.J.

at 385.    However,

           precautionary arming during a non-emergency
           situation is the type of conduct that the
           Legislature sought to interdict under
           section 5d. Persons who feel threatened
           should communicate with the police and not
           take the law into their own hands. . . .

           As a matter of public policy, by
           criminalizing possession of weapons in
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            anticipation of a future need for self-
            defense, the Legislature intended to keep
            instruments from being used as weapons.
            Hence, we hold that section 5d prohibits the
            possession of implements as weapons, even if
            possessed for precautionary purposes, except
            in situations of immediate and imminent
            danger.

            [Id. at 386-87.]

    Similarly, here, defendant armed himself merely as a

precautionary measure.    When found in possession of the knife in

the hospital, there was no evidence defendant was in imminent

danger.   Indeed, there were no circumstances suggesting he

needed the knife to protect himself.    A charge on the use of

force was not indicated and, thus, the court did not err by

failing to provide such an instruction.

    Defendant next contends the court violated N.J.R.E. 404(b)

by admitting defendant's "bad character" into evidence, also

requiring the reversal of his conviction.    The specific evidence

about which defendant complains is the co-worker's testimony he

initially refrained from calling the police out of a fear

defendant or another might retaliate against him for being a

"snitch."

     N.J.R.E. 404(b) provides in relevant part:

            evidence of other crimes, wrongs, or acts is
            not admissible to prove the disposition of a
            person in order to show that such person
            acted in conformity therewith. Such evidence
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         may be admitted for other purposes, such as
         proof of motive, opportunity, intent,
         preparation, plan, knowledge, identity or
         absence of mistake or accident when such
         matters are relevant to a material issue in
         dispute.

    First, the coworker did not testify about other crimes,

wrongs, or acts committed by defendant.     In fact, the co-worker

stated he did not know defendant.   The co-worker conveyed his

general impression that, in his particular community, those who

inform the police of another's criminal acts may be targeted for

vengeance by such person, or by others in the community who take

exception to those who "snitch."

    Second, even if the admission of this testimony were

inadmissible under N.J.R.E. 404(b), the error was harmless.

There was ample evidence defendant violated 
N.J.S.A. 2C:39-5(d)

when found in possession of the knife at the hospital.    In fact,

defendant does not dispute the evidence supports such

conviction, he contends only that he possessed the knife in the

event he might need it to defend himself.

    Accordingly, we reject defendant's contention the admission

of the subject co-worker's testimony warrants reversal of his

conviction.

    Affirmed.



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