STATE OF NEW JERSEY v. JOHNNY MILETE
Annotate this CaseNOT 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-0957-19T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHNNY MILETE,
Defendant-Respondent.
________________________
Argued March 25, 2020 – Decided December 23, 2020
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 18-09-0772.
Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for appellant (Carmelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, on the briefs).
Gregory Aprile argued the cause for respondent.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
A Passaic County Grand Jury indicted defendant Johnny Milete with
attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, second degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). At trial,
the petit jury found defendant guilty of second degree unlawful possession of a
handgun, and acquitted him of attempted murder, four lesser included offenses
of aggravated assault, and possession of a firearm for unlawful purpose. On
these charges, the jury found defendant acted in self-defense.
Defendant thereafter moved for a judgment of acquittal or alternatively
for a new trial. The parties submitted briefs in support of their respective
positions and presented oral argument to the trial judge over two separate days.
After oral argument, the State submitted a supplemental brief followed by a
reply brief from defense counsel. After considering the arguments of counsel
and reviewing the evidence presented to the jury, Judge Buono Stanton vacated
the conviction and granted defendant's motion for a new trial pursuant to Rule
3:20-1. The judge explained her reasoning in a comprehensive oral decision
delivered from the bench, followed by an equally well-reasoned memorandum
of opinion.
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The judge found the record of the charge conference 1 revealed that defense
counsel initially asked her to instruct the jury on the "necessity or justification
defense" as codified in N.J.S.A. 2C:3-2(b). Defense counsel acquiesced to the
judge's misgivings about the viability of this defense and withdrew his request
for a "necessity charge." Counsel was under the mistaken belief that the essence
of this defense was "interchangeable" with the self-defense charge. The judge
ultimately determined that this fundamental misapprehension of the necessity
charge deprived the jury of proper legal guidance. Consequently, this material
defect in the jury charges deprived defendant of a fair trial. This can only be
corrected by affirming the trial judge's order granting defendant's motion for a
new trial.
The judge made clear, however, that the concept of an "unjust result" does
not imply a judicial determination of defendant's innocence. Rather, the absence
of clear judicial instructions on the affirmative defense of "necessity or
justification" coupled with the failure to include this affirmative defense as a
1 Rule 1:8-7(b) directs, in relevant part, that "[p]rior to closing arguments, the
court shall hold a charge conference on the record in all criminal cases." The
transcript of the charge conference was not yet available at the time this issue
came before the trial court. The trial judge reconstructed the verbatim record of
the charge conference from CourtSmart. The parties have not challenged the
accuracy of the reconstructed record.
A-0957-19T6
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part of the verdict sheet, constituted an unjust result. Without legal guidance,
the jury was unable to properly consider the evidence in this case. The judge
rejected the State's argument that this legal failure was the result of invited error.
Relying on State v. Jenkins, 178 N.J. 347, 360 (2004), the trial judge candidly
admitted she deleted any reference to the necessity defense from the verdict
sheet "independent of any invitation or encouragement" from defense counsel.
By leave granted, the State argues the trial court erred in granting
defendant's motion for a new trial because the instructions the judge provided
the jury properly addressed all relevant legal issues. We disagree and affirm
substantially for the reasons expressed by Judge Buono Stanton. We derive the
following facts from the judge's findings, as supported by the record developed
during the trial.
I.
Defendant testified in his own defense. At the time this incident occurred,
defendant resided in the City of Paterson with his mother, younger brother,
sister, his niece, and his nephew. He was not married and was employed as a
landscaper.2 At approximately three o'clock in the morning on June 24, 2018,
2
Defendant admitted he had two prior criminal convictions. The first occurred
on January 18, 2011, and involved possession of a controlled dangerous
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defendant left a social club, picked up a woman identified as Jahara Nieves, and
drove directly to Mr. Chimi's Food Truck. As he had done on prior occasions,
defendant testified that he intended to buy takeout food and eat at home.
Security camera footage captured the incident that transpired which
ultimately led to the criminal charges filed against defendant. The trial judge
admitted the videorecording into evidence and showed it to the jury. As
defendant waited for his food, Nieves said she was cold and returned to the car.
At some point thereafter, defendant saw Miguel Soto, the man whom the State
identified as the victim in this case. According to defendant, when he made a
gesture to shake his hand, Soto said "get the fuck out of my face." In response
to his attorney's question, defendant characterized Soto's tone as "aggressive."
As Soto became more aggressive and started walking toward him, defendant
testified he "grabbed [Soto's] wrist" and told him several times: "I don't want no
problems."
Defendant let go of Soto's wrist and raised his hands with opened palms
up. Defendant claimed Soto "swung two punches that missed and he hit me after
substance, a third degree offense. The second occurred on September 13, 2011,
and also involved a third degree offense. He pled guilty to both offenses and
was sentenced on July 24, 2015 to serve an undetermined term of incarceration
at the Passaic County Correctional Facility.
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that." Defendant backed away and raised his arms to block Soto's punches. Soto
then "kind of put [defendant] . . . in a headlock while pulling off [his] tank top."
Defendant testified that he "lost consciousness . . . [and] while in the
unconscious state, I was getting beat. I was feeling hits in my back and my face
and my head." He also claimed Soto's friends "jumped" him. Although he was
not entirely certain how many people were involved in the melee, he believed
there were "at least three more."
Defendant provided the following description of what occurred next:
I . . . remember being on my side. I was unconscious
on my side. I was feeling the hits, though. [W]hen I
got . . . woken up . . . I'm not sure exactly how he did
it, but one of them, they like crushed my knee, like I
guess they stomped it. But it hurted [sic] so bad, like .
. . it put me in like a shocking state. I got right up.
Like, I jumped right up. And then the guy who was
hitting me, he was hitting me with a gun. He was the
one hitting me with a gun. Like, my tank top was like
wrapped in -- to his gun. And he kind of pulled -- well,
I grabbed on to his arm. He pulled me out of the . . .
(indiscernible) from being jumped. But I had control
of his gun. I pulled him. He was holding the gun
through the -- through the front right here. I had -- he
was hitting me with the clip, I guess --
....
-- or slapping me with the (indiscernible). I grabbed
the gun like that. I had full control of the gun after that.
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I pulled my tank top -- pulled my tank top off. I -- and
he stood where he was at, but I was -- I ended up
pointing it at Miguel Soto.
In response to defense counsel's follow-up questions, defendant clarified
that although he was not able to identify the person who struck him several times
with a handgun, defendant was certain Miguel Soto was not that person.
Defendant also admitted that after he took possession of the handgun, he pointed
it at Miguel Soto "[b]ecause the other guy . . . [just] stood where he was at. And
Miguel Soto . . . was like aggressive. Like he . . . didn't even care that I had the
gun."
According to defendant, Soto remained unphased: "He was looking at me
like with a mean face, told me he was going to kill me . . . . Like, he was going
to kill me even though I was . . . pointing a gun at him and he told me he was
going to kill me." Defendant testified he and the other participants in the
squabble did not move. Finally, defendant placed the handgun in his "right
pocket" and began to walk to his car. Jahara Nieves was standing outside the
car. Defendant testified that after he "grabbed the car keys" from Nieves, she
called out his name to alert him of something coming from behind. When
defendant looked back, he "saw them coming like as in [an] ambush thing. I
told her to back up. And . . . I proceeded to . . . shoot."
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In response to his attorney's questions, defendant explained:
I wanted to protect her, too. I told her to move back.
While walking towards them, like, I got the feeling of -
- when I stand up -- like if you stand up too fast,
everything starts turning white and you -- it was --
everything was turning white to me. And I . . . was in
the middle of shooting.
When I fired the third shot, the whiteness already
cleared out and I didn't see him there or none of his
friends. I was shooting in the direction of exactly where
I saw him at.
Defendant testified that he saw Miguel Soto coming at him with two
individuals to the right, two in the middle, and possibly two more on the other
side, "or maybe it could have been one." He thought they were going to take the
handgun from him; he shot purely in self-defense and was not aware the handgun
was loaded before he fired. Defendant testified that the handgun "didn’t even
shoot at first . . . I was like completely like almost white in my -- like my eye,
my vision. But I just cocked it because I knew, like, you either cock it or maybe
-- I don't even know why the trigger wasn't even moving."
Other than firing the handgun three times, defendant did not remember
"what actions" these individuals took immediately thereafter. He described
feeling briefly disoriented. After he regained his composure, he noticed that all
of the men were gone. He returned to his car, where Jahara Nieves was standing,
A-0957-19T6
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and told her to get in. As defendant drove away from the scene, he "threw the
gun out the window, [of the] right-side passenger seat." Defendant provided the
following description of the injuries he sustained in the altercation:
I have a scar on the top of my head. It was open. It was
open. On both of my side of my cheeks I was down to
my red meat – I mean, to my white meat. And I had
knots on my head. And like from the kicks to my back,
like bruises. Oh, and my knee. That was the worst
thing. It was all black. He crushed my knee.
Defendant did not consult a doctor or receive any medical attention related to
these injuries.
Miguel Soto died in an unrelated motor vehicle accident in April 2019,
two months before the start of the trial. The State's case was thus primarily
based on the videorecording of the event taken by security cameras located in
the parking lot.
II.
Rule 1:8-7(b) requires the trial judge "to hold a charge conference on the
record in all criminal cases." Here, the judge conducted the charge conference
over two days on June 5th and 6th, 2019, "which lasted collectively for about
five hours." Defense counsel gave notice to the prosecutor in advance of trial
of all three affirmative defenses: self-defense, duress, and necessity. At the
charge conference held on June 5, 2019, defense counsel requested the judge
A-0957-19T6
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charge the jury that all three defenses applied to all of the charges against
defendant, including second degree unlawful possession of a handgun. The
prosecutor disagreed.
The Criminal Code defines the defense of "necessity" as follows:
Conduct which would otherwise be an offense is
justifiable by reason of necessity to the extent permitted
by law and as to which neither the code nor other
statutory law defining the offense provides exceptions
or defenses dealing with the specific situation involved
and a legislative purpose to exclude the justification
claimed does not otherwise plainly appear.
[N.J.S.A. 2C:3-2(a).]
Defense counsel offered the following hypothetical facts in support of his
request to the judge to charge the jury to consider "necessity" as an affirmative
defense to the unlawful possession of a handgun charge:
Suppose I'm walking along the street and somebody
comes up to me with a gun to rob me. And I manage to
disarm the person, take the gun from him, and start
walking away from him. Technically, because I'm
holding onto the gun, I'm in unlawful possession of the
gun.
Do we really believe that I would or should be charged
under those circumstances with the unlawful possession
of the gun when that's the reason why I took it, for self-
protection, or because it was being threatened to be
used against me?
A-0957-19T6
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So I certainly I'm sure cannot be precluded from
arguing something like that to this jury. The question
does come down to as to whether, again, the
circumstances under which my client, at least according
to him, took possession of this gun, whether it
constitutes a defense to even the unlawful possession.
And I . . . think it's something that the jury should
consider.
The prosecutor conceded that under these hypothetical facts, the trial court
would have a rational basis to charge "self-defense" related to attempted murder.
However, the prosecutor argued that a claim of self-defense did not negate the
elements of the unlawful possession of a weapon. At the charge conference held
on June 5, 2019, the judge did not address nor analyze defendant's request.
The bulk of the discussion the second day of the charge conference
involved defendant's request to charge the jury with the affirmative defense of
duress, which the judge ultimately denied. The only time the necessity defense
was mentioned on the second day is reflected in the following brief interaction
between the judge and defense counsel:
THE COURT: Now, I just want to address -- I know
you put in a defense of necessity originally.
DEFENSE COUNSEL: Right.
THE COURT: And is that -- do you want a ruling on
that? I know it says here under [ N.J.S.A.] 2C:3-2(b), it
doesn’t apply when you have a self-defense.
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DEFENSE COUNSEL: I saw that, too, Judge. Yes.
....
THE COURT: And so are you withdrawing that notice?
DEFENSE COUNSEL: I will withdraw that. Yes, Your
Honor.
In his summation, defense counsel argued that under the circumstances
confronted by defendant, the jury should view his spontaneous decision to
temporarily seize the handgun as a reasonable and necessary act of self-
preservation:
The unlawful possession of a weapon, that -- the self-
defense charge technically doesn't apply to that, as I
told you. But if, ladies and gentlemen, this gun was
taken by Mr. Milete after it was used against him, not
shot -- not shot -- not shot but used in other ways, if that
was taken by him as he got away, right, and think about
it, if that was the case and the gun was even laying
around and that, would you discard the gun right there
so that whoever it was that was attacking you could pick
it right back up again and use it again? Of course,
you're going to take it with you. Of course.
It's too bad -- although it made sense, it's too bad that
he did that. As smart as it was, they were not, I'm sure,
giving it a whole lot of thought as a reaction to do that.
It's unfortunate in that, if he hadn't done that, then he
wouldn't have had the gun to fend off the second attack
or the approach of Mr. Soto and his friends. Maybe
something else would have happened to him, if he
hadn't done that but that, we know.
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Are we going to say, of course, he didn't have a permit
for that gun. It wasn't his gun. Are we going to say that
he's guilty of possession of that gun, too, under those
circumstances? I mean, if somebody came up to you on
the street and approached you, let's not even say with a
gun, with a knife to rob you and you managed to get
that knife from that person and you took it with you as
you were getting away, are you really guilty of
possession of that knife? The only reason why you took
possession of it really was to make sure it wasn't used
against you. So although, technically, the self-defense
does not apply to that charge, you have to consider
whether my client's possession of that gun for that brief
period of time for those circumstances constitutes even
a violation of that statute.
[(emphasis added).]
By contrast, when the prosecutor addressed the jury in summation, he
framed the task before them as a straightforward, mechanical application of the
statutory standards to the uncontested fact that at some point in the altercation,
defendant possessed the handgun without the legally required permit:
So S-1, there was a gun. We know there is a gun. One,
we saw the flashes on the video. Mr. Milete even
testified he shot the gun. We have the shell casings to
show his fire, and we also have a bullet hole.
The second element the State has to prove, the
defendant knowingly possessed a handgun. He shot it
three times. He possessed it. Not only did he possess
it, he took it with him. He possessed that gun. He didn't
pick it up, fire, drop it and leave. He possessed it. He
knowingly possessed that gun. He knew what it was,
he fired it, he possessed it.
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Element three. The defendant did not have a permit to
possess a weapon. S-20 in evidence. 3 From the State
Police, meaning that they ran Mr. Milete, he does not
have a permit to own any firearms. Three elements,
one, two, and three and that's how you get to guilt
beyond that count, ladies and gentlemen.
The jury began deliberating at approximately 1:35 p.m. In the course of
deliberations, the jury sent out a note with the following question: "what is a
sufficient period of time for possession?" Pursuant to Rule 1:8-8(b)(2), the
jurors were given written copies of the charges to take with them during
deliberations. Specifically, the bottom of page twenty-nine of the charges stated
that to: "Possess an item, one must knowingly procure or receive an item or be
aware of his control thereof for a sufficient period of time to have been able to
relinquish his control if he chose to do so."
After consulting with counsel, the judge decided to bring the jurors into
the courtroom and direct their attention to the page number in the charges that
addressed the concept of "possession." The judge reread to the jury the same
standard charge on possession. This prompted a lively exchange between the
3
This stipulation admitted into evidence an affidavit from a New Jersey State
Police Detective who attested that a search of the records "failed to reveal the
defendant making application for, or being issued, a Permit to Carry a Handgun,
Permits to Purchase Handguns, a Firearms Purchaser Identification Card, or a
Permit for an Assault Weapon."
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judge and a number of unidentified jurors, who expressed their dissatisfaction
with how the concept of "possession" was defined in the jury charges. In an
attempt to assuage the jury's consternation in this respect, the judge provided
the following response:
Okay, unfortunately, I think the parties will agree that
I cannot give you any more of a definition . . . than that
is as required.
I do note that that is contained within a larger
paragraph, to possess an item under the law, one must
have a knowing, intentional control of that item
accompanied by a knowledge of its character.
So a person who possesses an item such as a handgun,
must know or be aware that he possesses it, and he must
know what it is that he possesses or controls, that is a
handgun.
In other words, to possess an item, one must knowingly
procure or receive an item or be aware of his control
thereof for a sufficient period of time to have been able
to relinquish his control if he chose to do so.
You’re the jurors, you can decide based on the evidence
in this case if you feel, based on the evidence in this
case, if there was possession, if you -- considering -- if
there was sufficient period of time to have been able to
relinquish his control if he chose to do so.
Other than that, I cannot give you any more guidance
than that. You are the judges of the facts. The facts is
the evidence, the evidence includes information that
may assist you in applying the facts or the evidence or
lack thereof, to what the instructions are.
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Remember evidence or lack thereof or inferences or
reasonable inferences, your common sense, what a
reasonable person would think, all those words that I
had previously shared with you.
The judge noted for the record that she received the jury's note that
prompted this interaction and supplemental instructions at 2:41 p.m. The judge
received the envelope containing the jury's verdict sheet at 3:05 p.m. The jury
acquitted defendant of attempted murder, including the lesser included offenses,
and possession of a handgun for an unlawful purpose, and guilty of second
degree unlawful possession of a handgun. On June 14, 2019, defendant filed a
motion for judgment of acquittal, or in the alternative, a motion for a new trial.
After considering the briefs submitted by the parties and hearing the argument
presented by counsel, the judge denied defendant's motion for acquittal under
Rule 3:18-1, but granted his motion for a new trial under Rule 3:20-1.
III.
Judge Buono Stanton explained her reasons for granting defendant's
motion for a new trial in a comprehensive, well-written memorandum of
opinion. As the judge who presided over this trial, we will rely on the account
she provided to fill in any factual gaps related to what occurred during the charge
conference. The transcripts of the charge conference corroborate Judge Buono
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Stanton's account that defense counsel did not submit a draft instruction on the
affirmative defense of necessity.
Rule 3:20-1 authorizes the trial court to grant a motion for a new trial "in
the interest of justice." In her analysis of defendant's argument, Judge Buono
Stanton noted that "'clear and correct jury instructions are essential for a fair
trial' because the jury charge 'is a road map to guide the jury, and without an
appropriate charge a jury can take a wrong turn in its deliberations.'" State v.
Marshall, 173 N.J. 343, 359 (2002) (quoting State v. Koskovich, 168 N.J. 448,
507 (2001)).
The dispositive legal issue is whether justification by necessity, as
codified in N.J.S.A. 2C:3-2(b), can apply as a defense to the regulatory crime of
unlawful possession of a handgun, N.J.S.A. 2C:39-4(a) under the material facts
of this case. In State v. Harmon, our Supreme Court held:
[T]he policies embodied in our gun control laws,
N.J.S.A. 2C:39-3 and -5, would not allow self defense
as an excuse or justification to a charge of unlawful
possession under a regulatory offense when a person
arms himself prior to a danger becoming imminent.
Only in those rare and momentary circumstances where
an individual arms himself spontaneously to meet an
immediate danger should the justification afforded by
N.J.S.A. 2C:3-4 be considered.
[ 104 N.J. 189, 208-09 (1986) (emphasis added).]
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The Court reaffirmed these principles of justification and defense to a regulatory
offense in State v. Kelly, 118 N.J. 370, 385 (1990).
Here, defense counsel raised this defense as part of defendant's trial
strategy of self-defense. Although the State's version of events may not support
a Harmon/Kelly jury charge, the verdict acquitting defendant of all of the
charges, except for the unlawful possession of a weapon, supports a rational
inference that the jury accepted defendant's version of events. The failure to
provide a necessity instruction under these circumstances constitutes a manifest
injustice and warrants a new trial. Defendant testified he was beaten and pistol
whipped by as many as five assailants. He managed to seize possession of the
handgun in a spontaneous act of self-protection. He thereafter used the weapon
only to repel the onslaught of his assailants and discarded it as soon as he
believed it was safe to do so under the circumstances.
Judge Buono Stanton also correctly rejected the doctrine of invited error
under the prevailing circumstances. The judge found defense counsel candidly
admitted he should have pursued the necessity defense more forcibly when the
judge dismissed it as inapplicable under these circumstances. To her credit, the
judge also acknowledged in her memorandum of opinion that the jury's question
in the note:
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made it obvious that they struggled with the possession
count that the charge of necessity should have been
given both in the original charge and in response to the
jury's question. Indeed, if it had been given originally,
I do not believe that the jury would have needed to send
that note.
We review a trial judge's decision to grant defendant's motion for a new
trial under Rule 3:20-1 under an abuse of discretion standard, based on the
competent evidence presented by the parties, "and with deference to the trial
judge's feel for the case and observation of witnesses." State v. Terrell, 452 N.J.
Super. 226, 268-69 (App. Div. 2016), aff'd o.b., 231 N.J. 170 (2017). We
discern no basis to question Judge Buono Stanton's thoughtful, well-reasoned
analysis.
Affirmed.
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