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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3978-17T3






                   Argued December 18, 2019 – Decided April 30, 2020

                   Before Judges Whipple, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 16-07-0482.

                   Zachary Gilbert Markarian, Assistant Deputy Public
                   Defender, argued the cause for appellant (Joseph E.
                   Krakora, Public Defender, attorney; Zachary Gilbert
                   Markarian, of counsel and on the briefs).

                   Milton Samuel Leibowitz, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Lyndsay V. Ruotolo, Acting Union
                   County Prosecutor, attorney; Milton Samuel Leibowitz,
                   of counsel and on the brief).

        On July 19, 2016, defendant was charged in a Union County indictment

with second-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(1) (count one);

third-degree aggravated assault with a deadly weapon,  N.J.S.A. 2C:12-1(b)(2)

(count two); fourth-degree unlawful possession of a weapon,  N.J.S.A. 2C:39-

5(d) (count three); and third-degree possession of a weapon for an unlawful

purpose,  N.J.S.A. 2C:29-4(d) (count four).         The charges stemmed from a

physical altercation during which defendant allegedly struck Jared 1 Milon with

a hammer when Milon intervened in a fight between defendant's girlfriend,

Khylah Brown, and Milon's girlfriend, Sandina Depas. Following a jury trial,

defendant was convicted of simple assault, as a lesser included offense of count

one, and unlawful possession of a weapon, namely, a hammer, as charged in

count three. He was acquitted of counts two and four. In a January 18, 2018

judgment of conviction, he was sentenced to an aggregate term of two years'


        On appeal, defendant raises the following point for our consideration:


    Alternate spellings of Jared appear in the record.


                   [A]. THE   COURT  IMPROPERLY
                   ONESELF WITH A HAMMER IN SELF-

                   [B]. THE  COURT   IMPROPERLY
                   THE ASSAULT CHARGES.

                   [C]. THE   COURT    IMPROPERLY
                   OF MUTUAL FIGHTING.

Having considered these arguments in light of the record and the applicable legal

principles, we are constrained to reverse defendant's convictions and remand for

retrial on both counts.

      The physical altercation from which the charges arose occurred on March

26, 2016, and involved defendant, Brown, Milon, and Depas, all of whom

testified at the trial. For the State, Depas testified that at approximately 11:30

p.m., there was a knock on her bedroom door. When she opened the door, she

was confronted by Brown and defendant. Brown "asked [her] if [she] was

sleeping with [defendant]," to which Depas responded that "she should ask

[defendant]" that question.   After Brown threatened to fight Depas, Depas

refused to fight and closed her bedroom door.

      When Brown knocked again, Depas opened the door and a heated verbal

exchange ensued, which escalated into a physical altercation between the two

women, with Brown throwing the first punch. Once the two started fighting,

Milon, who had been asleep on Depas's bed, "got up" and tried to separate them.

At that point, defendant told Milon not to touch "[his] girl[,]" punched Depas,

and started fighting Milon. According to Depas, at first, defendant punched

Milon with his fists, "and then . . . defendant pulled out a hammer from his

pocket" and struck Milon with the hammer.

      Milon testified for the State and corroborated Depas's account. According

to Milon, when Brown "barged" into the bedroom to fight, he "put [his] hands

up . . . to separate them." Defendant objected to Milon touching Brown and

punched Depas in retaliation.    When Milon asked why he had hit Depas,

defendant lunged at him, first "hitting [him] with his fist" and then "hit[ting]

[him] in the head with [a] hammer." According to Milon, when defendant struck

him with the hammer, he was "kneel[ing] down on the floor on [his] knees"

while defendant was "crouched over top of [him]." Milon testified that he tried

"to defend [himself]" but was unsuccessful in blocking the blows.        Milon

described the hammer as "a ten inch [metal] house hammer" with a "[b]rown

handle." However, he did not see where the hammer came from.

      Eventually, defendant and Brown left the house. At that point, Depas

observed "a lot of blood all over [Milon's] shoulder," "neck," and "back." She

rushed him to the hospital where he was treated with "anti-inflammatory" and

"pain medication[s]" for "a broken nose," multiple abrasions on various parts of

his body, "a large abrasion on his skull," and a "severe headache." Later, Depas

reported the incident to the police and both she and Milon gave statements.

      Brown testified for defendant and gave a different account of what

transpired.   According to Brown, Depas approached her on the street in

Elizabeth at about 9:00 a.m. that morning and claimed "she was having sex with

[defendant]," an encounter Depas denied.         That evening, when Brown

confronted defendant with the allegation, he denied it and an argument ensued.

Skeptical of defendant's denial, Brown decided she would clear the matter up by

having Depas repeat her claim in defendant's presence.

      Depas and Brown lived "around the corner" from each other in Roselle

and Depas's housemate, Lando Marc, was a mutual friend. Brown and defendant

arrived at Depas's house at around 11:30 p.m., after confirming with Marc that

Depas was at the house. After Marc let them in, Brown knocked on Depas's

bedroom door. When Depas partially opened the door, Brown demanded that

Depas repeat her claim about having sex with defendant. Instead, Depas opened

the door fully to reveal that her boyfriend, Milon, was asleep in the room, yelled

at defendant to "[g]et [his] bitch," and slammed the door shut.

      Brown knocked on Depas's bedroom door again. This time, when Depas

opened the door, the two engaged in a heated verbal exchange which soon

escalated into a physical altercation, with Depas making the first move. As the

two women pushed and punched each other, Milon, who had awakened,

intervened and punched Brown. At that point, defendant and Milon started

"wrestling" on the ground and throwing punches at each other. Towards the end

of the fight, both men reached for a hammer that was behind the bedroom door.

Defendant grabbed the hammer first and "hit [Milon] in the back" with it.

Eventually, defendant "dropped the hammer" and said "that's enough." At that

point, he and Brown left the house and "went home." Brown testified that when

they left, she did not see any injuries on Milon. However, the following day,

the police arrested defendant. Brown denied that she or defendant brought the

hammer or any other weapon to Depas's house.

      Defendant testified on his own behalf and corroborated Brown's account.

According to defendant, while he and Milon were fighting on the ground, Milon

reached for a hammer behind the bedroom door but defendant "jumped quicker

and . . . got [the hammer]" first. After defendant grabbed the hammer, Milon

tried "to get it out of [his] hand." At that point, defendant "hit [Milon] with [the

hammer] in his back." Thereafter, Milon "held onto [defendant's] legs" when he

tried to get up "so [defendant] hit him with [the hammer] again." De fendant

testified that he grabbed the hammer "[t]o protect [him]self" because he thought

Milon "was going to hit [him] with it and he could have killed [him]." According

to defendant, "[he] did [not] hit [Milon] hard," and he did not intend to cause

him any serious injury. "[He] just wanted to get him off of [him]." Once Milon

stopped fighting him, defendant dropped the hammer and left the house with

Brown. Defendant testified that when he left the house, Milon did not have any

visible injuries and, contrary to Milon's description, the hammer had a black


      On appeal, defendant argues he "was deprived of his rights to due process

and a fair trial" because the "judge's instructions regarding the counts for which

[defendant] was convicted were deficient." Specifically, defendant asserts that

although the judge agreed to include a self-defense instruction for count four,

the judge refused to charge self-defense in connection with counts one and three,

and mutual fighting as a lesser included offense of simple assault.

      "Appropriate and proper charges to a jury are essential for a fair trial."

State v. Green,  86 N.J. 281, 287 (1981).           "The trial court must give 'a

comprehensible explanation of the questions that the jury must determine,

including the law of the case applicable to the facts that the jury may find.'"

State v. Baum,  224 N.J. 147, 159 (2016) (quoting Green,  86 N.J. at 287-88). In

fact, "[i]t is the independent duty of the court to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party."         State v.

Reddish,  181 N.J. 553, 613 (2004).

      In reviewing a jury charge, "[t]he test to be applied . . . is whether the

charge as a whole is misleading, or sets forth accurately and fairly the

controlling principles of law." State v. Jackmon,  305 N.J. Super. 274, 299 (App.

Div. 1997) (quoting State v. Sette,  259 N.J. Super. 156, 190-91 (App. Div.

1992)). "Because proper jury instructions are essential to a fair trial, 'erroneous

instructions on material points are presumed to' possess the capacity to unfairly

prejudice the defendant." State v. Bunch,  180 N.J. 534, 541-42 (2004) (quoting

State v. Nelson,  173 N.J. 417, 446 (2002)); see also State v. Jordan, 147 N.J.

409, 422 (1997) (finding "[e]rroneous instructions on matters or issues that are

material to the jury's deliberation are presumed to be reversible error in criminal


      Because defendant objected to the omission of the charges, in conducting

our review, if we find error, we must apply a harmless error analysis. See R.

2:10-2. "Under that standard, there must 'be "some degree of possibility that

[the error] led to an unjust result. The possibility must be real, one sufficient to

raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached."'" Baum,  224 N.J. at 159-60 (alterations in original)

(quoting State v. Lazo,  209 N.J. 9, 26 (2012)).

      First, we address defendant's contention that the judge erred in denying

his request to charge self-defense in connection with count three, unlawful

possession of a weapon,  N.J.S.A. 2C:39-5(d).  N.J.S.A. 2C:39-5(a) to (c) "makes

the possession of certain unlicensed weapons, such as machine guns, handguns,

rifles, or shotguns, a per se offense . . . regardless of the intent of the possessor

or circumstances surrounding the possession." State v. Kelly,  118 N.J. 370, 379

(1990).  N.J.S.A. 2C:39-5(d) "prohibits possession of any other weapon 'under

circumstances not manifestly appropriate for such lawful uses as it may have.'"

Ibid. (quoting  N.J.S.A. 2C:39-5(d)).

      In State v. Lee,  96 N.J. 156 (1984) and State v. Harmon,  104 N.J. 189

(1986), our Supreme Court

            define[d] section 5d as proscribing possession of
            weapons regardless of the possessor's intent . . . . [and]
            ma[d]e clear that allowing anticipatory self-defense as
            a justification for a section 5d offense [was]
            inconsistent with the "carefully constructed scheme for
            the criminalization of possession of weapons in various
            situations" outlined by the Legislature in N.J.S.A.
            2C:39-3, -4, and -5.

            [Kelly,  118 N.J. at 378 (quoting Lee,  96 N.J. at 160).]

In Kelly, our Supreme Court observed:

            [T]he carefully instructed legislative plan embodied in
             N.J.S.A. 2C:39-, together with a review [of] Lee and
            Harmon establishes that a jury charge on self-defense
            is largely inapplicable in the context of section 5d
            offenses. 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 section 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 section 5d offense.

            [ 118 N.J. at 381.]

      "Thus while self-defense may be probative to determining unlawful intent

to commit a crime, it is only relevant in the context of section 5d offenses when

a defendant makes spontaneous use of a weapon in response to an immediate

danger." Id. at 385. Stated differently, "extraordinary circumstances that allow

for . . . self-defense under section 5d" are "those in which a person makes

spontaneous use of a weapon to repel[] immediate danger."            Ibid. (citing

Harmon,  104 N.J. at 208-09).

      In Kelly, the Court

            found that no self-defense instruction was warranted in
            the absence of such spontaneous action during a street
            encounter. In that case, the defendant armed herself
            with a carpet-cutting razor before leaving her home to
            take her child out for a walk. She did so because her
            child's father, who had severely beaten her in the past,
            warned her not to walk past a certain street corner.
            When the defendant passed the corner, her abuser began
            punching her; she, in turn, slashed him repeatedly with
            the razor.

            [State v. Montalvo,  229 N.J. 300, 319 (2017) (citing
            Kelly,  118 N.J. at 373-75, 385-87).]

      The Kelly Court "held that because the defendant armed herself with the

razor before leaving her home in anticipation of using it for self-defense, a self-

defense instruction was not required." Montalvo,  229 N.J. at 319 (citing Kelly,

 118 N.J. at 385-87). The Kelly Court "observed, however, 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.'" Ibid. (quoting Kelly,  118 N.J. at 385).

      Here, although the judge agreed to instruct the jury on self-defense in

connection with count four, possession of a weapon for an unlawful purpose,

 N.J.S.A. 2C:29-4(d), the judge rejected defendant's request to instruct the jury

on self-defense in connection with count three, unlawful possession of a

weapon,  N.J.S.A. 2C:39-5(d). Moreover, during deliberations, when the jurors

asked whether they could consider self-defense in connection with count three,

over defense counsel's objection, the judge responded that self-defense was "not

a defense to [count three]," and only applied to count four.

      We are persuaded that the judge erred in refusing defendant's request to

instruct the jury on self-defense in connection with count three. The origin of

the hammer was hotly disputed, with the State contending defendant armed

himself with the hammer before arriving at the scene, while the defense asserted

the hammer was already at the house. On the one hand, while the jurors could

have convicted defendant on count three if they believed Depas's testimony that

defendant "pulled out a hammer from his pocket" and struck Milon with the

hammer, based on defendant's account, corroborated by Brown, defendant

seized the hammer spontaneously to meet an immediate danger and used it to

defend himself against a life-threatening attack.

      Under defendant's version, he would not have possessed the weapon for a

manifestly inappropriate purpose. Because defendant's account supported the

self-defense justification for count three, and because defendant was acquitted

of count four for which the jury considered the self-defense justification, we are

convinced that the error was sufficient to raise a reasonable doubt as to whether

it led the jury to a verdict it otherwise might not have reached.

      We now turn to defendant's contention that the judge erred in rejecting his

request to charge self-defense in connection with the aggravated assault charged

in count one. "In considering whether to charge the jury on self-defense, a court

should consider the circumstances that might give rise to that defense, including

the defendant's and alleged aggressor's conduct, rather than the charges chosen

by the prosecutor." State v. Rodriguez,  195 N.J. 165, 174 (2008). "The reality

of the situation facing the defendant governs whether he had a right to engage

in self-defense," ibid., and "self-defense must be charged if the evidence, viewed

most favorably to the defendant, would support that justification ." State v.

Gentry,  439 N.J. Super. 57, 63 (App. Div. 2015). Thus, "[a]s long as a self-

defense charge is requested and supported by some evidence in the record, it

must be given." Rodriguez,  195 N.J. at 174.

      Pursuant to  N.J.S.A. 2C:3-4(a), "the 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."

            [F]or defendant to prevail, the jury need not find
            beyond a reasonable doubt that the defendant's belief
            was honest and reasonable. Rather, if any evidence
            raising the issue of self-defense is adduced, either in the
            State's or the defendant's case, then the jury must be
            instructed that the State is required to prove beyond a
            reasonable doubt that the self-defense claim does not
            accord with the facts; acquittal is required if there
            remains a reasonable doubt whether the defendant acted
            in self-defense.

            [State v. Kelly,  97 N.J. 178, 200 (1984).]

      Here, defendant's intent in striking Milon with the hammer as well as the

number and severity of the blows were disputed. The State's witnesses testified

that the blows resulted in a great deal of blood on Milon's shoulder, neck, and

back, and were inflicted while Milon cowered on the floor on his knees. In

contrast, defendant testified that he hit Milon with the hammer twice to protect

himself from Milon's imminent use of life-threatening force. He denied striking

Milon hard, and denied causing any visible injuries, an observation Brown


      In rejecting defendant's request to charge self-defense, the judge stated 2

            [I]n terms of a test for self[-]defense, it would actually
            have to be for the individual to protect himself from
            some type of equal force. . . . [U]sing a hammer in a
            fist fight . . . is not self[-]defense in the same [vein] that
            using a . . . gun in a fist fight wouldn't be self[-]defense,
            a knife in a fist fight wouldn't be self[-]defense, a bat[]
            in a fist fight wouldn't be self[-]defense and so, a
            hammer in a fist fight wouldn't be self[-]defense, either.

                    . . . [B]y his own testimony[, defendant] did not
            take the hammer in order to protect himself. He took
            the hammer out of fear, he says, that the other
            individual just might get it, . . . and if he did get it[,]
            . . . he might use it against me.

                   But, there is . . . no proof of that, either.

      Clearly, the judge misstated defendant's testimony. It was for the jury to

determine whether defendant reasonably believed that the use of force, striking

Milon with the hammer twice, was necessary to protect himself against the use

of unlawful force by Milon. It was the judge's responsibility to determine

whether there was some evidence to support the jury charge. Viewing the

evidence in the light most favorable to the defense, defendant's testimony

provided some evidence from which the jury could have concluded that he acted

  Initially, the judge noted that the application asserting self-defense "was . . .
made out of time." However, the judge considered the application substantively
as permitted under Rule 3:12-1, authorizing the court to "take such action as the
interest of justice requires."
in justifiable self-defense. Indeed, based on defendant's testimony, it was Milon

who brought a hammer to a fist fight.

      The question of whether defendant's use of force was disproportionate

under the circumstances was for the jury to decide, not the judge. If the State

failed to prove beyond a reasonable doubt that defendant could not have

reasonably believed in the need to use force, defendant could have been

exonerated from criminal liability and acquitted of count one. Thus, we are

satisfied that the error was sufficient to raise a reasonable doubt as to whether it

led the jury to a verdict it otherwise might not have reached. Our conclusion is

compelled by the fact that the jury acquitted defendant of count four, the only

charge for which the judge provided the self-defense instruction. Moreover, the

fact that the judge charged self-defense for count four reinforces defendant's

contention that self-defense was supported by some evidence in the record.

      Because we conclude that the judge erred in failing to charge self-defense

as requested by defendant, we reverse his convictions for simple assault and

unlawful possession of a weapon, and remand for a new trial. Based on our

decision, we need not address defendant's contention that the judge also erred in

rejecting his request to charge the petty disorderly persons offense of mutual

fighting as a lesser-included offense of simple assault.

Reversed and remanded for a new trial. We do not retain jurisdiction.


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