On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2011
Before Judges A. A. Rodriguez, Ashrafi and Fasciale.
Defendant appeals from his conviction for fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The State concedes that the judge committed plain error by not charging self defense.*fn1 We reverse.
Defendant, his girlfriend (Jennifer), and their son, lived together in an apartment with Jennifer's sister, Giovanna. During an attempt to move out of the residence, defendant and Giovanna engaged in a physical altercation. Defendant injured Giovanna by striking her with a wooden stick from part of the furniture that he was moving.
As a result of the incident, defendant was indicted on charges of second-degree aggravated assault, N.J.S.A. 2C:12- 1b(1)(Count One),*fn2 fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Two), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Three). At trial, defendant asserted that he used force to protect himself, Jennifer, and their son. The trial judge charged the jury: The [i]ndictment charges that the [d]efendant has committed the crimes of aggravated assault [Count One] . . . as well as possession of a weapon for an unlawful purpose [Count Three].
The [d]efendant contends that if the State proves he used or threatened to use force upon another, that such force was justifiably used for a self defense.
During deliberations, the jury asked the judge, "[H]ow does the occurrence of self-defense affect the determination of guilty or not guilty in each of the three counts[?]" The judge explained to the attorneys that the justification defense of self-defense did not apply to Count Two. Defense counsel disagreed. The judge then recharged the jury but did not include the defense of self-defense for Count Two. The jury acquitted defendant of the two more serious charges but found him guilty of Count Two. The judge ordered defendant to pay mandatory fines and penalties, but did not impose a custodial sentence.
On appeal, defendant raises the following points:
THE TRIAL COURT'S ADMITTEDLY ERRONEOUS JURY INSTRUCTIONS, WHICH PROHIBITED THE JURY FROM CONSIDERING THE DEFENSES OF SELF-DEFENSE AND DEFENSE OF OTHERS WITH REGARD TO THE UNLAWFUL POSSESSION OF A WEAPON COUNT, DENIED DEFENDANT A FAIR TRIAL
THE JURY REACHED AN INCONSISTENT VERDICT DUE TO INCORRECT ...