A state appeals court on Tuesday cautioned criminal trial judges that reversal of conviction is the probable result if a jury isn’t instructed against drawing an adverse inference from a defendant’s refusal to testify.

A three-judge Appellate Division panel, in State v. Camacho, A-3284-10, ordered a new trial for a Bergen County man serving a 7-year sentence on a conviction for second-degree eluding.

"Erroneous instructions on matters or issues material to the jurors’ deliberations are presumed to be reversible error," the panel said.

Fausto Camacho was arrested on April 27, 2009, after allegedly stealing an Audi from outside a restaurant in Wallington and leading the police on a high-speed chase that ended at the Riverfront Plaza in Clifton. The driver of the car was wearing a beard.

At trial, Camacho was not wearing a beard and his attorney argued that Camacho was not the driver. The jury acquitted him of stealing the car but convicted him of eluding.

Camacho did not testify in his own defense and his lawyer, Clifford Lazzaro, asked Superior Court Judge Donald Venezia that the jury be given a no-adverse-inference charge. Venezia declined but did instruct jurors that Camacho had no burden to prove anything.

The state argued on appeal that in view of Venezia’s charge on the burden of proof, the lack of a no-adverse-inference charge was harmless.

Appellate Division Judges Jane Grall, Ellen Koblitz and Allison Accurso disagreed, saying the failure to instruct a jury on this issue is one of "constitutional dimension" and one that is nearly always a reversible error.

"Even if we were to evaluate this error under the harmless error standard, we cannot say that the failure of the judge to give the charge was harmless," the judges said.

They quoted the U.S. Supreme Court’s ruling in Carter v. Kentucky, 450 U.S. 288 (1981): "[N]o judge can prevent jurors from speculating about why a defendant stands mute in the face of criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum."

Deputy Public Defender Susan Brody, who represented Camacho on the appeal, says the ruling "demonstrates that getting the correct jury charge is not just a meaningless formula."

Officials from the Division of Criminal Justice, which handled the appeal from the state, did not return a telephone call seeking comment.