No. A-76-15 (077331)

June 8, 2017 (Date Decided)

Judge Fernandez-Vina

FOR APPELLANT: Lauren S. Michaels, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender, attorney; Lauren S. Michaels and Al Glimis, Assistant Deputy Public Defenders, on the briefs).

FOR RESPONDENT: Ian D. Brater, Assistant Prosecutor (Christopher J. Gramiccioni, Monmouth County Special Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor and Paul H. Heinzel, Assistant Prosecutor, on the briefs).

Defendant appealed from the appellate division’s affirmance of his conviction and sentence on charges of third-degree possession of a weapon for unlawful purpose and fourth-degree unlawful possession of a weapon. Defendant and his downstairs neighbor got into a heated exchange over noise from defendant’s unit. When the neighbor came to defendant’s door and began kicking and slamming on it, defendant became scared for himself and his family, and as a precautionary measure retrieved a machete before answering the door. The neighbor testified that defendant pointed the machete at him, while defendant testified that he kept the machete below his waist and behind his leg when speaking with the neighbor.

At trial, the trial court first charged the jury on the second count, but did not add a self-defense instruction to the model charge. The trial court then charged the jury on the first count, including a self-defense instruction to that charge. During their deliberations, the jury asked the trial court whether, on the second count of unlawful possession of a weapon, self-defense was considered a lawful use. The trial court responded by reading a section of State v. Kelly, 118 N.J. 370, which limited self-defense, with respect to possession of a weapon, to cases of spontaneous and compelling danger. The jury then acquitted defendant on count one and convicted on count two. The appellate division affirmed, concluding that the trial court properly relied upon Kelly.

On appeal, the court reversed, holding that the right to possess a weapon in one’s home for self-defense would have little worth if one could not possess the weapon in hand except to pick it up “spontaneously.” The court further ruled that defendant had a constitutional right to possess the machete in his home for his defense and the defense of his family. The court held that because the trial court’s instructions failed to convey this principle to the jury, they were erroneous. The court ruled that the trial court’s erroneous instructions were plain error because they could have produced an unjust result. Specifically, the court noted that if the jurors believed defendant’s version of events, then defendant’s possession of the machete would have been protected under the Second Amendment and under state statutory and case law. The court further noted that the trial court’s instruction permitted the jury to convict defendant under either a proper theory that he raised the machete at his neighbor, or an improper theory that he merely held the machete at his side.