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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0957-19T6






                   Argued March 25, 2020 – Decided December 22, 2020

                   Before Judges Fuentes, Mayer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 18-09-0772.

                   Ali Y. Ozbek, Assistant Prosecutor, argued the cause
                   for appellant (Carmelia M. Valdes, Passaic County
                   Prosecutor, attorney; Ali Y. Ozbek, on the briefs).

                   Gregory Aprile argued the cause for respondent.

          The opinion of the court was delivered by

      A Passaic County Grand Jury indicted defendant Johnny Milete with

attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, second degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second degree

possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). At trial,

the petit jury found defendant guilty of second degree unlawful possession of a

handgun, and acquitted him of attempted murder, four lesser included offenses

of aggravated assault, and possession of a firearm for unlawful purpose. On

these charges, the jury found defendant acted in self-defense.

      Defendant thereafter moved for a judgment of acquittal or alternatively

for a new trial. The parties submitted briefs in support of their respective

positions and presented oral argument to the trial judge over two separate days.

After oral argument, the State submitted a supplemental brief followed by a

reply brief from defense counsel. After considering the arguments of counsel

and reviewing the evidence presented to the jury, Judge Buono Stanton vacated

the conviction and granted defendant's motion for a new trial pursuant to Rule

3:20-1. The judge explained her reasoning in a comprehensive oral decision

delivered from the bench, followed by an equally well-reasoned memorandum

of opinion.

      The judge found the record of the charge conference 1 revealed that defense

counsel initially asked her to instruct the jury on the "necessity or justification

defense" as codified in N.J.S.A. 2C:3-2(b). Defense counsel acquiesced to the

judge's misgivings about the viability of this defense and withdrew his request

for a "necessity charge." Counsel was under the mistaken belief that the essence

of this defense was "interchangeable" with the self-defense charge. The judge

ultimately determined that this fundamental misapprehension of the necessity

charge deprived the jury of proper legal guidance. Consequently, this material

defect in the jury charges deprived defendant of a fair trial. This can only be

corrected by affirming the trial judge's order granting defendant's motion for a

new trial.

      The judge made clear, however, that the concept of an "unjust result" does

not imply a judicial determination of defendant's innocence. Rather, the absence

of clear judicial instructions on the affirmative defense of "necessity or

justification" coupled with the failure to include this affirmative defense as a

   Rule 1:8-7(b) directs, in relevant part, that "[p]rior to closing arguments, the
court shall hold a charge conference on the record in all criminal cases." The
transcript of the charge conference was not yet available at the time this issue
came before the trial court. The trial judge reconstructed the verbatim record of
the charge conference from CourtSmart. The parties have not challenged the
accuracy of the reconstructed record.
part of the verdict sheet, constituted an unjust result. Without legal guidance,

the jury was unable to properly consider the evidence in this case. The judge

rejected the State's argument that this legal failure was the result of invited error.

Relying on State v. Jenkins, 178 N.J. 347, 360 (2004), the trial judge candidly

admitted she deleted any reference to the necessity defense from the verdict

sheet "independent of any invitation or encouragement" from defense counsel.

      By leave granted, the State argues the trial court erred in granting

defendant's motion for a new trial because the instructions the judge provided

the jury properly addressed all relevant legal issues. We disagree and affirm

substantially for the reasons expressed by Judge Buono Stanton. We derive the

following facts from the judge's findings, as supported by the record developed

during the trial.


      Defendant testified in his own defense. At the time this incident occurred,

defendant resided in the City of Paterson with his mother, younger brother,

sister, his niece, and his nephew. He was not married and was employed as a

landscaper.2 At approximately three o'clock in the morning on June 24, 2018,

  Defendant admitted he had two prior criminal convictions. The first occurred
on January 18, 2011, and involved possession of a controlled dangerous

defendant left a social club, picked up a woman identified as Jahara Nieves, and

drove directly to Mr. Chimi's Food Truck. As he had done on prior occasions,

defendant testified that he intended to buy takeout food and eat at home.

      Security camera footage captured the incident that transpired which

ultimately led to the criminal charges filed against defendant. The trial judge

admitted the videorecording into evidence and showed it to the jury.            As

defendant waited for his food, Nieves said she was cold and returned to the car.

At some point thereafter, defendant saw Miguel Soto, the man whom the State

identified as the victim in this case. According to defendant, when he made a

gesture to shake his hand, Soto said "get the fuck out of my face." In response

to his attorney's question, defendant characterized Soto's tone as "aggressive."

As Soto became more aggressive and started walking toward him, defendant

testified he "grabbed [Soto's] wrist" and told him several times: "I don't want no


      Defendant let go of Soto's wrist and raised his hands with opened palms

up. Defendant claimed Soto "swung two punches that missed and he hit me after

substance, a third degree offense. The second occurred on September 13, 2011,
and also involved a third degree offense. He pled guilty to both offenses and
was sentenced on July 24, 2015 to serve an undetermined term of incarceration
at the Passaic County Correctional Facility.
that." Defendant backed away and raised his arms to block Soto's punches. Soto

then "kind of put [defendant] . . . in a headlock while pulling off [his] tank top."

Defendant testified that he "lost consciousness . . . [and] while in the

unconscious state, I was getting beat. I was feeling hits in my back and my face

and my head." He also claimed Soto's friends "jumped" him. Although he was

not entirely certain how many people were involved in the melee, he believed

there were "at least three more."

      Defendant provided the following description of what occurred next:

            I . . . remember being on my side. I was unconscious
            on my side. I was feeling the hits, though. [W]hen I
            got . . . woken up . . . I'm not sure exactly how he did
            it, but one of them, they like crushed my knee, like I
            guess they stomped it. But it hurted [sic] so bad, like .
            . . it put me in like a shocking state. I got right up.
            Like, I jumped right up. And then the guy who was
            hitting me, he was hitting me with a gun. He was the
            one hitting me with a gun. Like, my tank top was like
            wrapped in -- to his gun. And he kind of pulled -- well,
            I grabbed on to his arm. He pulled me out of the . . .
            (indiscernible) from being jumped. But I had control
            of his gun. I pulled him. He was holding the gun
            through the -- through the front right here. I had -- he
            was hitting me with the clip, I guess --


            -- or slapping me with the (indiscernible). I grabbed
            the gun like that. I had full control of the gun after that.

              I pulled my tank top -- pulled my tank top off. I -- and
              he stood where he was at, but I was -- I ended up
              pointing it at Miguel Soto.

        In response to defense counsel's follow-up questions, defendant clarified

that although he was not able to identify the person who struck him several times

with a handgun, defendant was certain Miguel Soto was not that person.

Defendant also admitted that after he took possession of the handgun, he pointed

it at Miguel Soto "[b]ecause the other guy . . . [just] stood where he was at. And

Miguel Soto . . . was like aggressive. Like he . . . didn't even care that I had the


        According to defendant, Soto remained unphased: "He was looking at me

like with a mean face, told me he was going to kill me . . . . Like, he was going

to kill me even though I was . . . pointing a gun at him and he told me he was

going to kill me." Defendant testified he and the other participants in the

squabble did not move. Finally, defendant placed the handgun in his "right

pocket" and began to walk to his car. Jahara Nieves was standing outside the

car. Defendant testified that after he "grabbed the car keys" from Nieves, she

called out his name to alert him of something coming from behind. When

defendant looked back, he "saw them coming like as in [an] ambush thing. I

told her to back up. And . . . I proceeded to . . . shoot."

      In response to his attorney's questions, defendant explained:

            I wanted to protect her, too. I told her to move back.
            While walking towards them, like, I got the feeling of -
            - when I stand up -- like if you stand up too fast,
            everything starts turning white and you -- it was --
            everything was turning white to me. And I . . . was in
            the middle of shooting.

            When I fired the third shot, the whiteness already
            cleared out and I didn't see him there or none of his
            friends. I was shooting in the direction of exactly where
            I saw him at.

      Defendant testified that he saw Miguel Soto coming at him with two

individuals to the right, two in the middle, and possibly two more on the other

side, "or maybe it could have been one." He thought they were going to take the

handgun from him; he shot purely in self-defense and was not aware the handgun

was loaded before he fired. Defendant testified that the handgun "didn’t even

shoot at first . . . I was like completely like almost white in my -- like my eye,

my vision. But I just cocked it because I knew, like, you either cock it or maybe

-- I don't even know why the trigger wasn't even moving."

      Other than firing the handgun three times, defendant did not remember

"what actions" these individuals took immediately thereafter. He described

feeling briefly disoriented. After he regained his composure, he noticed that all

of the men were gone. He returned to his car, where Jahara Nieves was standing,

and told her to get in. As defendant drove away from the scene, he "threw the

gun out the window, [of the] right-side passenger seat." Defendant provided the

following description of the injuries he sustained in the altercation:

             I have a scar on the top of my head. It was open. It was
             open. On both of my side of my cheeks I was down to
             my red meat – I mean, to my white meat. And I had
             knots on my head. And like from the kicks to my back,
             like bruises. Oh, and my knee. That was the worst
             thing. It was all black. He crushed my knee.

Defendant did not consult a doctor or receive any medical attention related to

these injuries.

      Miguel Soto died in an unrelated motor vehicle accident in April 2019,

two months before the start of the trial. The State's case was thus primarily

based on the videorecording of the event taken by security cameras located in

the parking lot.


      Rule 1:8-7(b) requires the trial judge "to hold a charge conference on the

record in all criminal cases." Here, the judge conducted the charge conference

over two days on June 5th and 6th, 2019, "which lasted collectively for about

five hours." Defense counsel gave notice to the prosecutor in advance of trial

of all three affirmative defenses: self-defense, duress, and necessity. At the

charge conference held on June 5, 2019, defense counsel requested the judge

charge the jury that all three defenses applied to all of the charges against

defendant, including second degree unlawful possession of a handgun. The

prosecutor disagreed.

      The Criminal Code defines the defense of "necessity" as follows:

            Conduct which would otherwise be an offense is
            justifiable by reason of necessity to the extent permitted
            by law and as to which neither the code nor other
            statutory law defining the offense provides exceptions
            or defenses dealing with the specific situation involved
            and a legislative purpose to exclude the justification
            claimed does not otherwise plainly appear.

            [N.J.S.A. 2C:3-2(a).]

      Defense counsel offered the following hypothetical facts in support of his

request to the judge to charge the jury to consider "necessity" as an affirmative

defense to the unlawful possession of a handgun charge:

            Suppose I'm walking along the street and somebody
            comes up to me with a gun to rob me. And I manage to
            disarm the person, take the gun from him, and start
            walking away from him. Technically, because I'm
            holding onto the gun, I'm in unlawful possession of the

            Do we really believe that I would or should be charged
            under those circumstances with the unlawful possession
            of the gun when that's the reason why I took it, for self-
            protection, or because it was being threatened to be
            used against me?

            So I certainly I'm sure cannot be precluded from
            arguing something like that to this jury. The question
            does come down to as to whether, again, the
            circumstances under which my client, at least according
            to him, took possession of this gun, whether it
            constitutes a defense to even the unlawful possession.
            And I . . . think it's something that the jury should

      The prosecutor conceded that under these hypothetical facts, the trial court

would have a rational basis to charge "self-defense" related to attempted murder.

However, the prosecutor argued that a claim of self-defense did not negate the

elements of the unlawful possession of a weapon. At the charge conference held

on June 5, 2019, the judge did not address nor analyze defendant's request.

      The bulk of the discussion the second day of the charge conference

involved defendant's request to charge the jury with the affirmative defense of

duress, which the judge ultimately denied. The only time the necessity defense

was mentioned on the second day is reflected in the following brief interaction

between the judge and defense counsel:

            THE COURT: Now, I just want to address -- I know
            you put in a defense of necessity originally.

            DEFENSE COUNSEL: Right.

            THE COURT: And is that -- do you want a ruling on
            that? I know it says here under [N.J.S.A.] 2C:3-2(b), it
            doesn’t apply when you have a self-defense.

            DEFENSE COUNSEL: I saw that, too, Judge. Yes.


            THE COURT: And so are you withdrawing that notice?

            DEFENSE COUNSEL: I will withdraw that. Yes, Your

      In his summation, defense counsel argued that under the circumstances

confronted by defendant, the jury should view his spontaneous decision to

temporarily seize the handgun as a reasonable and necessary act of self-


            The unlawful possession of a weapon, that -- the self-
            defense charge technically doesn't apply to that, as I
            told you. But if, ladies and gentlemen, this gun was
            taken by Mr. Milete after it was used against him, not
            shot -- not shot -- not shot but used in other ways, if that
            was taken by him as he got away, right, and think about
            it, if that was the case and the gun was even laying
            around and that, would you discard the gun right there
            so that whoever it was that was attacking you could pick
            it right back up again and use it again? Of course,
            you're going to take it with you. Of course.

            It's too bad -- although it made sense, it's too bad that
            he did that. As smart as it was, they were not, I'm sure,
            giving it a whole lot of thought as a reaction to do that.
            It's unfortunate in that, if he hadn't done that, then he
            wouldn't have had the gun to fend off the second attack
            or the approach of Mr. Soto and his friends. Maybe
            something else would have happened to him, if he
            hadn't done that but that, we know.

            Are we going to say, of course, he didn't have a permit
            for that gun. It wasn't his gun. Are we going to say that
            he's guilty of possession of that gun, too, under those
            circumstances? I mean, if somebody came up to you on
            the street and approached you, let's not even say with a
            gun, with a knife to rob you and you managed to get
            that knife from that person and you took it with you as
            you were getting away, are you really guilty of
            possession of that knife? The only reason why you took
            possession of it really was to make sure it wasn't used
            against you. So although, technically, the self-defense
            does not apply to that charge, you have to consider
            whether my client's possession of that gun for that brief
            period of time for those circumstances constitutes even
            a violation of that statute.

            [(emphasis added).]

      By contrast, when the prosecutor addressed the jury in summation, he

framed the task before them as a straightforward, mechanical application of the

statutory standards to the uncontested fact that at some point in the altercation,

defendant possessed the handgun without the legally required permit:

            So S-1, there was a gun. We know there is a gun. One,
            we saw the flashes on the video. Mr. Milete even
            testified he shot the gun. We have the shell casings to
            show his fire, and we also have a bullet hole.

            The second element the State has to prove, the
            defendant knowingly possessed a handgun. He shot it
            three times. He possessed it. Not only did he possess
            it, he took it with him. He possessed that gun. He didn't
            pick it up, fire, drop it and leave. He possessed it. He
            knowingly possessed that gun. He knew what it was,
            he fired it, he possessed it.

            Element three. The defendant did not have a permit to
            possess a weapon. S-20 in evidence. 3 From the State
            Police, meaning that they ran Mr. Milete, he does not
            have a permit to own any firearms. Three elements,
            one, two, and three and that's how you get to guilt
            beyond that count, ladies and gentlemen.

      The jury began deliberating at approximately 1:35 p.m. In the course of

deliberations, the jury sent out a note with the following question: "what is a

sufficient period of time for possession?" Pursuant to Rule 1:8-8(b)(2), the

jurors were given written copies of the charges to take with them during

deliberations. Specifically, the bottom of page twenty-nine of the charges stated

that to: "Possess an item, one must knowingly procure or receive an item or be

aware of his control thereof for a sufficient period of time to have been able to

relinquish his control if he chose to do so."

      After consulting with counsel, the judge decided to bring the jurors into

the courtroom and direct their attention to the page number in the charges that

addressed the concept of "possession." The judge reread to the jury the same

standard charge on possession. This prompted a lively exchange between the

  This stipulation admitted into evidence an affidavit from a New Jersey State
Police Detective who attested that a search of the records "failed to reveal the
defendant making application for, or being issued, a Permit to Carry a Handgun,
Permits to Purchase Handguns, a Firearms Purchaser Identification Card, or a
Permit for an Assault Weapon."
judge and a number of unidentified jurors, who expressed their dissatisfaction

with how the concept of "possession" was defined in the jury charges. In an

attempt to assuage the jury's consternation in this respect, the judge provided

the following response:

            Okay, unfortunately, I think the parties will agree that
            I cannot give you any more of a definition . . . than that
            is as required.

            I do note that that is contained within a larger
            paragraph, to possess an item under the law, one must
            have a knowing, intentional control of that item
            accompanied by a knowledge of its character.

            So a person who possesses an item such as a handgun,
            must know or be aware that he possesses it, and he must
            know what it is that he possesses or controls, that is a

            In other words, to possess an item, one must knowingly
            procure or receive an item or be aware of his control
            thereof for a sufficient period of time to have been able
            to relinquish his control if he chose to do so.

            You’re the jurors, you can decide based on the evidence
            in this case if you feel, based on the evidence in this
            case, if there was possession, if you -- considering -- if
            there was sufficient period of time to have been able to
            relinquish his control if he chose to do so.

            Other than that, I cannot give you any more guidance
            than that. You are the judges of the facts. The facts is
            the evidence, the evidence includes information that
            may assist you in applying the facts or the evidence or
            lack thereof, to what the instructions are.

            Remember evidence or lack thereof or inferences or
            reasonable inferences, your common sense, what a
            reasonable person would think, all those words that I
            had previously shared with you.

       The judge noted for the record that she received the jury's note that

prompted this interaction and supplemental instructions at 2:41 p.m. The judge

received the envelope containing the jury's verdict sheet at 3:05 p.m. The jury

acquitted defendant of attempted murder, including the lesser included offenses,

and possession of a handgun for an unlawful purpose, and guilty of second

degree unlawful possession of a handgun. On June 14, 2019, defendant filed a

motion for judgment of acquittal, or in the alternative, a motion for a new trial.

After considering the briefs submitted by the parties and hearing the argument

presented by counsel, the judge denied defendant's motion for acquittal under

Rule 3:18-1, but granted his motion for a new trial under Rule 3:20-1.


      Judge Buono Stanton explained her reasons for granting defendant's

motion for a new trial in a comprehensive, well-written memorandum of

opinion. As the judge who presided over this trial, we will rely on the account

she provided to fill in any factual gaps related to what occurred during the charge

conference. The transcripts of the charge conference corroborate Judge Buono

Stanton's account that defense counsel did not submit a draft instruction on the

affirmative defense of necessity.

      Rule 3:20-1 authorizes the trial court to grant a motion for a new trial "in

the interest of justice." In her analysis of defendant's argument, Judge Buono

Stanton noted that "'clear and correct jury instructions are essential for a fair

trial' because the jury charge 'is a road map to guide the jury, and without an

appropriate charge a jury can take a wrong turn in its deliberations.'" State v.

Marshall, 173 N.J. 343, 359 (2002) (quoting State v. Koskovich, 168 N.J. 448,

507 (2001)).

      The dispositive legal issue is whether justification by necessity, as

codified in N.J.S.A. 2C:3-2(b), can apply as a defense to the regulatory crime of

unlawful possession of a handgun, N.J.S.A. 2C:39-4(a) under the material facts

of this case. In State v. Harmon, our Supreme Court held:

            [T]he policies embodied in our gun control laws,
            N.J.S.A. 2C:39-3 and -5, would not allow self defense
            as an excuse or justification to a charge of unlawful
            possession under a regulatory offense when a person
            arms himself prior to a danger becoming imminent.
            Only in those rare and momentary circumstances where
            an individual arms himself spontaneously to meet an
            immediate danger should the justification afforded by
            N.J.S.A. 2C:3-4 be considered.

            [104 N.J. 189, 208-09 (1986) (emphasis added).]

The Court reaffirmed these principles of justification and defense to a regulatory

offense in State v. Kelly, 118 N.J. 370, 385 (1990).

      Here, defense counsel raised this defense as part of defendant's trial

strategy of self-defense. Although the State's version of events may not support

a Harmon/Kelly jury charge, the verdict acquitting defendant of all of the

charges, except for the unlawful possession of a weapon, supports a rational

inference that the jury accepted defendant's version of events. The failure to

provide a necessity instruction under these circumstances constitutes a manifest

injustice and warrants a new trial. Defendant testified he was beaten and pistol

whipped by as many as five assailants. He managed to seize possession of the

handgun in a spontaneous act of self-protection. He thereafter used the weapon

only to repel the onslaught of his assailants and discarded it as soon as he

believed it was safe to do so under the circumstances.

      Judge Buono Stanton also correctly rejected the doctrine of invited error

under the prevailing circumstances. The judge found defense counsel candidly

admitted he should have pursued the necessity defense more forcibly when the

judge dismissed it as inapplicable under these circumstances. To her credit, the

judge also acknowledged in her memorandum of opinion that the jury's question

in the note:

            made it obvious that they struggled with the possession
            count that the charge of necessity should have been
            given both in the original charge and in response to the
            jury's question. Indeed, if it had been given originally,
            I do not believe that the jury would have needed to send
            that note.

      We review a trial judge's decision to grant defendant's motion fo r a new

trial under Rule 3:20-1 under an abuse of discretion standard, based on the

competent evidence presented by the parties, "and with deference to the trial

judge's feel for the case and observation of witnesses." State v. Terrell, 452 N.J.

Super. 226, 268-69 (App. Div. 2016), aff'd o.b., 231 N.J. 170 (2017). We

discern no basis to question Judge Buono Stanton's thoughtful, well-reasoned




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