NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-3978-17T3
STATE OF NEW JERSEY,
GREGORY HYACINTHE, a/k/a
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:
BECAUSE [DEFENDANT'S] AND BROWN'S
TESTIMONY PROVIDED SOME EVIDENCE THAT
[DEFENDANT] ACTED IN SELF-DEFENSE
DURING THE FIGHT WITH MILON, THE TRIAL
Alternate spellings of Jared appear in the record.
COURT ERRED IN REFUSING TO INSTRUCT THE
JURY REGARDING SELF-DEFENSE AND IN
REFUSING TO CHARGE MUTUAL FIGHTING,
[A]. THE COURT IMPROPERLY
REFUSED TO INSTRUCT THE JURY
THAT SPONTANEOUSLY ARMING
ONESELF WITH A HAMMER IN SELF-
DEFENSE CONSTITUTES LAWFUL
[B]. THE COURT IMPROPERLY
REFUSED TO INSTRUCT THE JURY
REGARDING SELF-DEFENSE AS TO
THE ASSAULT CHARGES.
[C]. THE COURT IMPROPERLY
REFUSED TO INSTRUCT THE JURY AS
TO THE LESSER-INCLUDED CHARGE
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
[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
[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.