State v. Crisoforo Montalvo (077331) (Monmouth and Statewide) , 229 N.J. 300 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Crisoforo Montalvo (A-76-15) (077331)
Argued February 28, 2017 -- Decided June 8, 2017
FERNANDEZ-VINA, J., writing for the Court.
This appeal concerns whether an individual may lawfully possess and hold a weapon for self-defense in his
home while answering the front door.
Defendant Crisoforo Montalvo and his wife lived directly above Arturs Daleckis and his wife. On the night
of March 24, 2012, Daleckis grew agitated by noise emanating from Montalvo’s unit; he stood on his bed and
knocked on the ceiling three or four times. Montalvo then proceeded downstairs and knocked on Daleckis’s door.
Montalvo picked up a small table belonging to Daleckis and threw it off the front porch, breaking it.
After Montalvo returned to his unit, Daleckis knocked on the door. Montalvo and his wife testified that
they heard knocking, kicking, and slamming on the door. Montalvo testified that he became scared for himself, his
wife, and their unborn child. As a precautionary measure, Montalvo retrieved a machete from a closet as he moved
to answer the door. Daleckis testified that Montalvo pointed the machete at him. Montalvo testified that he kept the
machete in his hand, behind his leg, and below his waist while speaking with Daleckis.
Daleckis testified that he asked Montalvo why he opened the door with a machete in his hand and
Montalvo responded, “I don’t care.” Daleckis then stated he was going to call the police and Montalvo again
replied, “I don’t care.” Following this exchange, both men returned to their apartments. Daleckis telephoned 911.
Daleckis testified that he then heard yelling, followed by the sound of “banging . . . cutting . . . [or] chopping” of
metal and the next morning saw what appeared to be two machete marks on the shared porch. Montalvo testified
that after he and Daleckis finished talking, he immediately walked back up his stairs and handed the machete to his
wife, who placed the machete back in the closet while Montalvo waited outside on the porch for the police to arrive.
One day after the incident, the State charged Montalvo with the disorderly persons offense of criminal
mischief. The complaint-warrant specified that Montalvo was charged with breaking Daleckis’s furniture. In June
2012, a grand jury indicted Montalvo for third-degree possession of a weapon for an unlawful purpose (Count One),
and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (Count Two).
Montalvo was tried before a jury. When the trial judge charged the jury, he first provided the instructions
for Count Two. The judge primarily relied upon the Model Jury Charge for N.J.S.A. 2C:39-5(d). The judge did not
add a self-defense instruction to the model charge for Count Two. The judge then instructed the jury on Count One,
the unlawful-purpose charge, and included a self-defense instruction with respect to that charge.
During deliberations, the jury sent the trial judge a note asking, “Second charge, unlawful possession of a
weapon, is self[-]defense considered a lawful use?” The judge and counsel for both sides discussed the appropriate
response to the jury’s inquiry on the record. During this colloquy, the trial judge decided to answer the jury’s
question by reading a section of State v. Kelly, 118 N.J. 370 (1990), and stated in part that “it would appear that the
availability of necessity as a justification for the immediate possession of a weapon, as with self[-]defense, is limited
only to cases of spontaneous and compelling danger.” Minutes later, the jury found Montalvo not guilty of Count
One and guilty of Count Two. The trial judge found Montalvo guilty of the disorderly persons offense.
The Appellate Division affirmed Montalvo’s conviction and sentence. The panel addressed Montalvo’s
Second Amendment claim and held that it was meritless because the surrounding circumstances and the machete’s
status as an uncommon item sufficiently supported the jury’s verdict. The panel concluded that the jury instructions
properly relied upon Kelly. The Court granted Montalvo’s petition for certification. 226 N.J. 212 (2016).
1
HELD: The right to possess a weapon in one’s own home for self-defense would be of little effect if one were required
to keep the weapon out-of-hand, picking it up only “spontaneously.” Defendant had a constitutional right to possess the
machete in his home for his own defense and that of his pregnant wife. Because the trial court’s instructions did not
convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of
producing an unjust result in this matter, they constitute plain error.
1. N.J.S.A. 2C:39-5(d) states that “[a]ny person who knowingly has in his possession any other weapon under
circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth
degree.” The purpose of Section 5(d) is to protect citizens from the threat of harm while permitting the use of
objects such as knives in a manner consistent with a free and civilized society. (pp 16-19)
2. Self-defense is a potential defense to a possessory weapons offense. The Second Amendment “guarantee[s] the
individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S.
570, 592 (2008). In State v. Harmon, the Court held that self-defense does not excuse the possession of a weapon
under N.J.S.A. 2C:39-5(d) except “in those rare and momentary circumstances where an individual arms himself
spontaneously to meet an immediate danger.” 104 N.J. 189, 208-09 (1986). In Kelly, the Court found that no self-
defense instruction was warranted in the absence of such spontaneous action during a street encounter. (pp. 19-21)
3. The home is accorded special treatment within the justification of self-defense. In Heller, supra, the United
States Supreme Court emphasized the right to possess weapons in the home, “where the need for defense of self,
family, and property is most acute.” 554 U.S. at 628. (pp. 21-23)
4. When a party does not object to a jury instruction, this Court reviews the instruction for plain error. Plain error
refers to any error “clearly capable of producing an unjust result.” R. 2:10-2. (pp 23-24)
5. In response to the jury’s question, the court relied on language it found in Kelly, in which self-defense was raised
in connection with Section 5(d). However, Kelly is not applicable to Montalvo’s situation. The Court applied the
spontaneity requirement in Kelly because the only scenario in which the defendant’s use could constitute lawful
self-defense would be if she had a manifestly lawful purpose to carry the razor, then suddenly and spontaneously
used it as a weapon to repel immediate harm. Montalvo legally possessed a machete in his home. The Second
Amendment protects the right of individuals to possess weapons, including machetes, in the home for self-defense
purposes. Because the instructions did not convey this principle, the instructions were erroneous. (pp. 24-26)
6. If the jurors believed Montalvo’s version of events, he never left his apartment with the machete, never used it
against person or property, and never raised it toward Daleckis. Such possession is protected by the Second
Amendment and is consistent with New Jersey’s statutory scheme and caselaw. The record does not provide the
information needed to determine which version of events the jury relied upon to convict Montalvo under N.J.S.A.
2C:39-5(d), and the Court will not speculate about the foundations of the jury verdict. Here, because the jury
instructions permitted the jurors to convict Montalvo either upon a valid theory of guilt—threatening Daleckis with
the machete unprovoked or taking the machete outside and damaging the porch—or upon an invalid theory—
holding the machete when answering the door—the jury instructions were clearly capable of producing an unjust
result. (pp 27-29)
7. The Court directs the Committee on Model Criminal Jury Charges to review and revise the charge for N.J.S.A.
2C:39-5(d). A modified jury instruction is necessary to clarify that possession of a lawful weapon in one’s home
cannot form the basis of a conviction under N.J.S.A. 2C:39-5(d). Therefore, we direct the Committee to refashion
the charge consistent with this opinion. The Court suggests language for the Committee’s consideration in
refashioning the charge and notes that that the spontaneity requirement of Kelly is not applicable to possession of a
legal weapon in the home for self-defense purposes. (pp. 29-31)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON,
and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.
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SUPREME COURT OF NEW JERSEY
A-76 September Term 2015
077331
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CRISOFORO MONTALVO,
Defendant-Appellant.
Argued February 28, 2017 – Decided June 8, 2017
On certification to the Superior Court,
Appellate Division.
Lauren S. Michaels, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Lauren S. Michaels and Al Glimis,
Assistant Deputy Public Defenders, on the
briefs).
Ian D. Brater, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Mary R. Juliano, Special Deputy
Attorney General/Acting Assistant Prosecutor
and Paul H. Heinzel, Assistant Prosecutor,
on the briefs).
Emily R. Anderson, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
This appeal concerns whether an individual may lawfully
possess and hold a weapon for self-defense in his home while
1
answering the front door. Specifically, this Court is called
upon to determine whether an individual is criminally liable for
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), if he does
not arm himself spontaneously to greet an imminent danger.
In 2012, defendant Crisoforo Montalvo engaged in a
confrontation with his downstairs neighbor Arturs Daleckis.
Following an argument about noise, Montalvo broke a small
outdoor table belonging to Daleckis. Daleckis knocked on
Montalvo’s front door. Fearing reprisal for the damage to the
table, Montalvo answered the door with a machete in his hand.
According to Montalvo, he never raised the machete at Daleckis
and never exited his apartment with it. Daleckis, however,
claimed that Montalvo pointed the machete at him and later used
it to damage their shared porch.
As a result of this altercation, the State charged Montalvo
with unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d). Regarding the unlawful possession charge, the trial judge
instructed the jury that self-defense does not justify
possession under N.J.S.A. 2C:39-5(d) unless the defendant arms
himself spontaneously to repel an immediate threat. The judge
provided a standard self-defense instruction for the unlawful
purpose charge.
2
The jury convicted Montalvo of unlawful possession of a
weapon and acquitted him of possession of a weapon for an
unlawful purpose. Montalvo appealed, arguing that the
conviction violated his Second Amendment right to bear arms and
that the jury instructions were erroneous. The Appellate
Division affirmed. We reverse because the jury instructions
constitute plain error.
I.
A.
The following facts are gleaned from the testimony at
defendant’s trial. This matter stems from a dispute between two
neighbors in the late night hours of March 24, 2012. Defendant
Crisoforo Montalvo and his wife Orbilit Reyes-Avilas formerly
resided in a second-floor apartment in Bradley Beach (Apartment
2). The door to Apartment 2 is located on an elevated front
porch of the property. The front door opens to a stairwell
leading to the living room of Apartment 2. Next to Apartment
2’s front door is the door for the first-floor unit (Apartment
1).
Arturs Daleckis and his wife occupied Apartment 1 during
the time in question. The tenants shared the elevated porch
with two other units. According to Daleckis, the ceiling
separating Apartment 1 and Apartment 2 provided poor insulation
from sound.
3
Montalvo and Reyes-Avilas lived directly above Daleckis and
his wife for approximately two years prior to the incident in
question. Montalvo and Reyes-Avilas testified that Daleckis
frequently threw loud parties during their occupancy. Daleckis
testified that he also experienced noise issues with Montalvo
and spoke with him when the noise grew too loud.
On the night of March 24, 2012, Daleckis grew agitated by
noise emanating from Apartment 2. According to Daleckis, the
noise included banging and what sounded like fighting or
“violent exchanges.” Montalvo and Reyes-Avilas disputed this
characterization and testified that they were merely talking,
laughing, and watching television in their apartment.
Reyes-Avilas was approximately seven months pregnant at the
time.
In response to the noise emanating from Apartment 2,
Daleckis stood on his bed and knocked on the ceiling three or
four times. Daleckis characterized his knocking as gentle. In
contrast, Montalvo testified that the knocking shook the entire
living room and caused him and Reyes-Avilas to become nervous.
Montalvo then proceeded downstairs and knocked on Daleckis’s
door. According to Montalvo, he did not receive an answer.
Daleckis claimed not to have heard any knocking at his door.
At this point, Montalvo picked up a small table belonging
to Daleckis and threw it off the porch, breaking it. Daleckis
4
testified that he had purchased the table for approximately five
dollars at a flea market. Montalvo then returned to Apartment
2.
Shortly after Montalvo returned to his unit, Daleckis
knocked on the door of Apartment 2. Although Daleckis testified
that he knocked on the door to resolve the situation peacefully,
Montalvo and Reyes-Avilas testified that they heard knocking,
kicking, and slamming on the door. Montalvo testified that he
became scared for himself, his wife, and their unborn child.
According to Montalvo, he was concerned that Daleckis might have
a gun.
As a precautionary measure, Montalvo retrieved a machete
from a closet as he moved to answer the door. Montalvo had
owned the machete for about four months and had recently begun
utilizing it in his roofing job. He kept it alongside various
other tools in the closet. Montalvo opened the door and faced
Daleckis.
According to Montalvo, he held the machete down behind his
leg so as not to scare Daleckis. Montalvo stated that when he
opened the door Daleckis said, “Why do you break my f---ing
furniture?” and that he responded, “[B]ecause you make noise. .
. . You banging on my ceiling and you turn my wife nervous.”
Montalvo testified that Daleckis was yelling at him; Daleckis
stated that he was speaking with “a little louder voice.”
5
During this altercation, Daleckis was on the porch and Montalvo
remained within the threshold of Apartment 2.
Daleckis testified that he did not see the machete
initially but told Montalvo to “calm down.” According to
Daleckis, this statement prompted Montalvo to lower his arm,
moving the machete so it was visible to Daleckis. Daleckis
testified that Montalvo pointed the machete at him. He also
testified to his realization that, prior to lowering his arm,
Montalvo was holding the machete at an angle “like he was ready
to chop.”
In contrast, Montalvo testified that he kept the machete in
his hand, behind his leg, and below his waist while speaking
with Daleckis. When Daleckis made a physical gesture (“he did
his move”) toward him, he also made a physical gesture (“I did
this move”) and the machete became visible from behind
Montalvo’s leg. Reyes-Avilas testified that when this exchange
took place she was at the top of the stairs, looking down at the
front door, and witnessed Montalvo holding the machete downward.
Daleckis testified that he asked Montalvo why he opened the
door with a machete in his hand and Montalvo responded, “I don’t
care.” Daleckis then stated he was going to call the police and
Montalvo again replied, “I don’t care.” Following this
exchange, both men returned to their apartments.
6
Upon returning to Apartment 1, Daleckis telephoned 911.
Daleckis told the 911 operator that Montalvo was “upstairs going
crazy” and that “he opened the door with a huge knife in his
hand.” Daleckis informed the operator that Montalvo never
stepped outside with the weapon.
Daleckis testified that he then heard yelling, followed by
the sound of “banging . . . cutting . . . [or] chopping” of
metal and the next morning saw what appeared to be two machete
marks on the shared porch. In contrast, Montalvo testified that
after he and Daleckis finished talking, he immediately walked
back up his stairs and handed the machete to Reyes-Avilas.
Reyes-Avilas placed the machete back in the closet while
Montalvo waited outside on the porch for the police to arrive.
When the police arrived, Montalvo was standing on the
porch. Montalvo raised his hands in the air and stated “I got
nothing” as they approached. He told the police that he grabbed
the machete because he was afraid for his and his wife’s lives.
The police handcuffed Montalvo and placed him in a patrol car.
One officer observed a broken wooden item in front of the porch.
When Reyes-Avilas spoke with the responding officers, she told
them that she placed the machete back in the closet.
The officers retrieved the machete from the closet and
arrested Montalvo. The next day, Daleckis refused to provide a
7
statement to the police because he did not want Montalvo to get
in trouble.
B.
One day after the incident, the State charged Montalvo with
the disorderly persons offense of criminal mischief, contrary to
N.J.S.A. 2C:17-3(b)(2). The complaint-warrant specified that
Montalvo was charged with breaking Daleckis’s furniture. In
June 2012, a Monmouth County grand jury indicted Montalvo for
third-degree possession of a weapon for an unlawful purpose,
contrary to N.J.S.A. 2C:39-4(d) (Count One), and fourth-degree
unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d)
(Count Two).
The June indictment set forth both charges. Count One
alleged that Montalvo possessed the machete “with a purpose to
use it unlawfully against the person or property of [Daleckis].”
Count Two alleged that Montalvo knowingly possessed the machete
“under circumstances not manifestly appropriate for such lawful
uses as it may have.”
Montalvo was tried before a jury in July and August 2013.
When the trial judge charged the jury, he first provided the
instructions for Count Two, the unlawful possession charge. The
judge primarily relied upon the Model Jury Charge for N.J.S.A.
2C:39-5(d). In relevant part, the Model Jury Charge provides:
8
In order to convict the defendant [under
N.J.S.A. 2C:39-5(d)], the State must prove the
following elements beyond a reasonable doubt
1. That S - is a weapon (or
that there was a weapon);
2. That the defendant possessed the
weapon knowingly; and
3. That the defendant’s possession of
the weapon was under circumstances not
manifestly appropriate for a lawful use.
. . . .
The third element that the State must prove
beyond a reasonable doubt is that the
defendant possessed S - ______ . . . under
circumstances not manifestly appropriate for
such lawful uses as it may have. It is not
necessary for the State to prove that the
defendant formed an intent to use S - ______
. . . as a weapon.
It is, however, necessary for the State to
prove that it was possessed under such
circumstances that a reasonable person would
recognize that it was likely to be used as a
weapon; in other words, under circumstances
where it posed . . . a likely threat of harm
to others [AND/OR] a likely threat of damage
to property. You may consider factors such as
the surrounding circumstances; size, shape and
condition of the object, the nature of its
concealment, the time, place and actions of
the defendant when it was found in his/her
possession to determine whether or not the
object was manifestly appropriate for its
lawful use.
If the State has proven each element beyond a
reasonable doubt, then you must find defendant
guilty. If, however, the State has failed to
prove any element of the offense beyond a
reasonable doubt, then you must find defendant
not guilty.
9
[Model Jury Charges (Criminal), “Unlawful
Possession of a Weapon (N.J.S.A. 2C:39-5(d))”
(Apr. 18, 2005).]
The judge did not add a self-defense instruction to the
model charge for Count Two.
The judge then instructed the jury on Count One, the
unlawful-purpose charge, and included a self-defense instruction
with respect to that charge. As to the self-defense instruction
for Count One, the judge stated:
I have already told you that the State must
prove beyond a reasonable doubt that the
defendant had an unlawful purpose at the time
[in] question. If you find that the defendant
had a lawful purpose, for example, to use the
machete to protect himself and his pregnant
wife or use it against the use of unlawful
force or if you have a reasonable doubt as to
the defendant’s purpose, then the State has
failed to carry its burden of proof on this
element beyond a reasonable doubt.
I instruct you that for the purpose of this
offense, if the defendant honestly believed
that he needed to use that machete to protect
himself and his wife, the law does not require
that this belief be reasonable. In other
words, if the defendant had an honest, though
unreasonable, belief that he needed to use the
weapon to protect himself and his wife, this
negates the purposeful mental state required
for this particular offense.
During deliberations, the jury sent the trial judge a note
asking, “Second charge, unlawful possession of a weapon, is
self[-]defense considered a lawful use?” The judge and counsel
for both sides discussed the appropriate response to the jury’s
10
inquiry on the record. During this colloquy, the trial judge
decided to answer the jury’s question by reading a section of
State v. Kelly, 118 N.J. 370 (1990). In response to the jury’s
question, the court stated:
Members of the jury, in response to your
question, “Is self[-]defense considered a
lawful use,” I remind you that it is necessary
for the State to prove that it, meaning the
object[,] was possessed under such
circumstances that a reasonable person would
recognize that it was likely to be used as a
weapon. In other words, under circumstances
where it posed a likely threat of harm to
others and/or a likely threat of damage to
property, you may consider factors such as the
surrounding circumstances as well as the size,
shape, and condition of the object; the nature
of its concealment; the time, place and
actions of the defendant; when it was found in
his possession to determine whether or not the
object was manifestly appropriate for its
lawful uses.
This statute is 2C:39-5(d). Section 5(d)
prohibits the possession of implements as
weapons even if possessed for precautionary
purposes, except in situations of immediate
and imminent danger.
Although self[-]defense involves a lawful use
of a weapon, it does not justify the unlawful
possession of the weapon under Section 5(d)
except when a person uses a weapon after
arming himself or herself spontaneously to
repel an immediate danger.
Obviously, there may be circumstances in which
a weapon is seized in response to an immediate
danger, but ensuing circumstances render its
use unnecessary. Under such conditions, the
individual may take immediate possession of
the weapon out of necessity rather than self[-
]defense. However, it would appear that the
11
availability of necessity as a justification
for the immediate possession of a weapon, as
with self[-]defense, is limited only to cases
of spontaneous and compelling danger. Please
resume your deliberations.
Minutes later, the jury found Montalvo not guilty of Count
One, possession of a weapon for an unlawful purpose, and guilty
of Count Two, unlawful possession of a weapon. That same day,
the trial judge found Montalvo guilty of the criminal mischief
disorderly persons offense.
In October 2013, the trial court sentenced Montalvo to 540
days of imprisonment for Count Two. The court also sentenced
Montalvo to an eighteen-day jail term for the criminal mischief
charge. Because Montalvo remained incarcerated prior to
sentencing, the court credited him with the 558 days already
served.
Montalvo filed a timely appeal of his conviction for
unlawful possession of a weapon. Specifically, Montalvo
asserted that his conviction criminalizes the possession of an
otherwise legal weapon in his home in violation of the Second
Amendment. He also argued that the trial judge improperly
instructed the jury concerning the applicability of self-defense
to Count Two.
In an unpublished per curiam opinion, the Appellate
Division affirmed Montalvo’s conviction and sentence. The panel
addressed Montalvo’s Second Amendment claim and held that it was
12
meritless because the surrounding circumstances and the
machete’s status as an uncommon item sufficiently supported the
jury’s verdict. As to Montalvo’s second argument, the panel
held that the jury instructions did not amount to plain error.
The panel concluded that the jury instructions properly relied
upon Kelly, which was the controlling case to address the jury’s
question.
We granted Montalvo’s petition for certification. 226 N.J.
212 (2016).
II.
Montalvo reiterates the contentions that he made before the
Appellate Division and urges this Court to reverse his
conviction. First, Montalvo argues that his defensive
possession of the machete in his own home was manifestly
appropriate under the circumstances. He further avers that his
conviction for unlawful possession of a weapon criminalizes the
defensive possession of an otherwise lawful weapon in the home
in violation of the Second Amendment to the United States
Constitution.
Second, Montalvo maintains that the trial judge’s response
to the jury’s question as to whether self-defense constitutes a
lawful use under N.J.S.A. 2C:39-5(d) was improper. He asserts
that the trial judge erroneously relied upon Kelly to instruct
the jury that self-defense could be justified under Section 5(d)
13
only to spontaneously repel an immediate danger. Montalvo
claims the judge misstated the controlling law because self-
defense does not turn on whether an immediate, spontaneous
danger actually exists but on whether the defendant reasonably
believes the danger exists. He argues that the judge did not
adequately tailor the charge to his self-defense claim.
The State urges this Court to affirm the Appellate
Division’s decision. It contends that Montalvo’s Second
Amendment rights were not violated and that the jury
instructions were not plainly erroneous.
First, the State maintains that Montalvo’s conduct
“exceeded legal norms of appropriate force applicable to self-
defense” and was disproportionate to the harm he allegedly
faced. The State claims that Montalvo did not have a reasonable
belief that Daleckis was armed. It further argues that Montalvo
used the machete to damage the porch outside of the home, which
the Second Amendment does not protect. The State characterizes
such use of the machete as offensive rather than defensive.
Second, the State asserts that because Montalvo failed to
object to the jury charge during the trial, we must review the
charge for plain error and reverse only if it was clearly
capable of producing an unjust result. The State avers that the
charge does not constitute plain error. The State stresses that
even if Montalvo had a right to possess the machete in his home
14
for self-defense, the charge would not produce an unjust result.
In accordance with N.J.S.A. 2C:3-4, Montalvo would have to show
that he reasonably believed his defensive conduct was necessary
to prevent harm and that his defensive conduct was not
disproportionate to the perceived threat. The State asserts
that Montalvo made no such showing.
Specifically, the State contends that there was no
justification for Montalvo’s actions inside his home or on the
porch outside his home because he did not face immediate harm.
Relying on Kelly, the State claims that self-defense justifies
an offense under N.J.S.A. 2C:39-5(d) only when a person
spontaneously possesses a weapon to repel immediate danger.
Thus, the State argues that Kelly applies to any self-defense
claim and rendered the jury charge proper.
We granted the Attorney General amicus curiae status in
this case. The Attorney General echoes many of the State’s
arguments and urges this Court to reaffirm the constitutionality
of N.J.S.A. 2C:39-5(d).
The Attorney General asserts that the Second Amendment did
not protect Montalvo’s use of the machete on the porch because
it occurred outside the home. The Attorney General does not
dispute that possession of a weapon in the home under
circumstances supporting a “valid self-defense claim” is lawful.
But the Attorney General maintains that self-defense is
15
inapplicable in this case because Montalvo’s actions were not
defensive, reasonable, or spontaneous.
The Attorney General also recommends that this Court modify
or replace the existing Model Jury Charge for N.J.S.A. 2C:39-
5(d) to address circumstances similar to those presented in this
case. Specifically, the Attorney General asks this Court to
explain that passive possession of a weapon in the home for
self-defense is not a crime per se but that individuals may use
weapons for active self-defense only if they arm themselves
spontaneously to repel an immediate danger.
III.
To evaluate the adequacy of the jury instructions at the
heart of this appeal, we first review the legal principles that
those instructions were intended to convey.
A.
New Jersey has three classes of possessory weapons
offenses. State v. Lee, 96 N.J. 156, 160 (1984). Although the
classes serve distinct purposes, they “should not be considered
as mutually exclusive.” Id. at 161. The first class per se
criminalizes the possession of certain types of weapons such as
sawed-off shotguns and also bans weapons such as switchblade
knives unless the possessor can demonstrate an “explainable
lawful purpose.” Id. at 160 (citing N.J.S.A. 2C:39-3).
16
The second class of possessory offenses “prohibits the
possession of a weapon with the intent to use it against the
person or property of another.” Ibid. (citing N.J.S.A. 2C:39-
4).
The third and final class, which is at issue in this case,
prohibits the possession of any weapon, other than certain
firearms, when an actor “has not yet formed an intent to use
[the] object as a weapon [but] possesses it under circumstances
in which it is likely to be so used.” Id. at 161 (citing
N.J.S.A. 2C:39-5(d)). The third class of possessory weapons
offenses is codified by N.J.S.A. 2C:39-5(d), which states that
“[a]ny person who knowingly has in his possession any other
weapon under circumstances not manifestly appropriate for such
lawful uses as it may have is guilty of a crime of the fourth
degree.” The purpose of Section 5(d) is to “protect[] citizens
from the threat of harm while permitting the use of objects such
as knives in a manner consistent with a free and civilized
society.” Lee, supra, 96 N.J. at 162. The statute applies to
circumstances resulting in a threat of harm to persons or
property. State in Interest of G.C., 179 N.J. 475, 481-84
(2004).
A machete constitutes a “weapon” within this statutory
scheme. See N.J.S.A. 2C:39-1(r) (defining weapon as “anything
readily capable of lethal use or inflicting serious bodily
17
injury”); State v. Irizarry, 270 N.J. Super. 669, 673 (App. Div.
1994) (observing N.J.S.A. 2C:39-5(d) concerns weapons “such as
knives and machetes[] that have both lawful and unlawful uses”).
Although possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d), calls for an inquiry into the intent of the
possessor of a weapon, intent is not an element of unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d). Kelly, supra, 118
N.J. at 380; Lee, supra, 96 N.J. at 162-63; State v. Wright, 96
N.J. 170, 171 (1984), appeal dismissed, 469 U.S. 1146, 105 S.
Ct. 890, 83 L. Ed. 2d 906 (1985). Therefore, the proper Section
5(d) inquiry is not one of intent, “but whether the
circumstances surrounding the possession were manifestly
appropriate” for lawful use. State v. Colon, 186 N.J. Super.
355, 357 (App. Div. 1982) (per curiam). For instance, under
different circumstances a machete can constitute a lethal weapon
or a deep-sea fishing tool. Lee, supra, 96 N.J at 161 (citing
State v. Hay, 153 N.J. Super. 346, 349 (App. Div. 1977), certif.
denied, 75 N.J. 600 (1978)). We previously determined that the
statutory language of N.J.S.A. 2C:39-5(d) is not
unconstitutionally overbroad or vague. Id. at 164-67; Wright,
supra, 96 N.J. at 171.
In determining whether the use of a weapon is manifestly
appropriate or inappropriate under the circumstances, a jury
must look to the facts of the case and not to the subjective
18
intent of the actor. Compare Lee, supra, 96 N.J. at 164-67
(upholding defendant’s conviction for possessing scissors taped
to simulate stiletto while burglarizing home because “[i]t would
be difficult to imagine a less appropriate possession of” that
instrument), and Wright, supra, 96 N.J. at 172-73 (reinstating
defendant’s conviction for possessing Exacto knife, strapped to
leg, while wandering neighborhood), with State v. Blaine, 221
N.J. Super. 66, 70-71 (App. Div. 1987) (finding defendant
walking down street with pocketknife in pocket insufficient for
conviction), and State v. Riley, 306 N.J. Super. 141, 149-51
(App. Div. 1997) (reversing defendant’s conviction for carrying
but not displaying or brandishing pocketknife while committing
robbery).
B.
Self-defense is a potential defense to a possessory weapons
offense. The Second Amendment of the United States Constitution
states, “A well regulated militia, being necessary to the
security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” U.S. Const. amend. II. The
Second Amendment “guarantee[s] the individual right to possess
and carry weapons in case of confrontation,” District of
Columbia v. Heller, 554 U.S. 570, 592, 128 S. Ct. 2783, 2797,
171 L. Ed. 2d 637, 657 (2008), and fully applies to the States,
McDonald v. City of Chicago, 561 U.S. 742, 750, 130 S. Ct. 3020,
19
3026, 177 L. Ed. 2d 894, 903 (2010). It extends to “all
instruments that constitute bearable arms.” Heller, supra, 554
U.S. at 582, 128 S. Ct. at 2792, 171 L. Ed. 2d at 651.
In Heller, the Supreme Court recognized that “the inherent
right of self-defense has been central to the Second Amendment
right.” Id. at 628, 128 S. Ct. at 2817, 171 L. Ed. 2d at 679.
New Jersey’s statutes protect the right of self-defense.
Generally, the use of force against 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” another. N.J.S.A. 2C:3-
4(a). The use of deadly force for self-defense is justifiable
only when the actor reasonably believes that such force is
necessary to protect himself against death or serious bodily
injury, unless the actor provoked the use of force or knows he
can safely retreat. N.J.S.A. 2C:3-4(b)(2). Thus, the defensive
conduct must be based on a reasonable belief of potential harm,
and the defensive force must be proportional to the offensive
force.
This Court has previously considered the justification of
self-defense in relation to a violation of N.J.S.A. 2C:39-5(d).
In State v. Harmon, we held that self-defense does not excuse
the possession of a weapon under N.J.S.A. 2C:39-5(d) except “in
those rare and momentary circumstances where an individual arms
20
himself spontaneously to meet an immediate danger.” 104 N.J.
189, 208-09 (1986).
In Kelly, supra, we found that no self-defense instruction
was warranted in the absence of such spontaneous action during a
street encounter. 118 N.J. at 385-87. In that case, the
defendant armed herself with a carpet-cutting razor before
leaving her home to take her child out for a walk. Id. at 374.
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. Id. at 373-74. When the defendant passed the corner,
her abuser began punching her; she, in turn, slashed him
repeatedly with the razor. Id. at 374-75.
We 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. Id.
at 385-87. We 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.”
Id. at 385.
C.
The home is accorded special treatment within the
justification of self-defense. In Heller, supra, the United
States Supreme Court emphasized the right to possess weapons in
21
the home, “where the need for defense of self, family, and
property is most acute.” 554 U.S. at 628, 128 S. Ct. at 2817,
171 L. Ed. 2d at 679.
New Jersey law reflects that principle. For example,
although “[t]raditionally self-defense claims require that a
person who can safely retreat from the confrontation avail
themselves of that means of escape,” that requirement is
suspended under the “castle doctrine . . . if the confrontation
takes place in one’s home or ‘castle.’” State v. Gartland, 149
N.J. 456, 466 (1997) (quoting Beth Bjerregaard & Anita N.
Blowers, Chartering a New Frontier for Self-Defense Claims: The
Applicability of the Battered Person Syndrome as a Defense for
Parricide Offenders, 33 U. Louisville J. Fam. L. 843, 870-71
(1995)); see also N.J.S.A. 2C:3-4(b)(2)(b)(i) (providing there
is no duty for anyone who is not initial aggressor in physical
confrontation “to retreat from [one’s] dwelling”); N.J.S.A.
2C:3-4(c)(1) (“[T]he use of force or deadly force upon or toward
an intruder who is unlawfully in a dwelling is justifiable when
the actor reasonably believes that the force is immediately
necessary for the purpose of protecting himself or other persons
in the dwelling . . . .”).
Having reviewed the possessory offense at issue here as
well as the justification of self-defense both as a general
22
matter and in relation to the home, we turn to the jury
instructions.
IV.
Jury instructions demand careful attention. They “must
provide 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. Singleton, 211
N.J. 157, 181-82 (2012) (quoting State v. Green, 86 N.J. 281,
287-88 (1981)). Without an objection at the time a jury
instruction is given, “there is a presumption that the charge
was not error and was unlikely to prejudice the defendant’s
case.” Id. at 182.
When a party does not object to a jury instruction, this
Court reviews the instruction for plain error. R. 1:7-2; State
v. Wakefield, 190 N.J. 397, 472-73 (2007), cert. denied, 552
U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Plain
error refers to any error “clearly capable of producing an
unjust result.” R. 2:10-2. Regarding a jury instruction,
“plain error requires demonstration of ‘legal impropriety in the
charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the
reviewing court and to convince the court that of itself the
error possessed a clear capacity to bring about an unjust
result.’” State v. Chapland, 187 N.J. 275, 289 (2006) (quoting
23
State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S.
930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).
The record in this case demonstrates that Montalvo’s trial
counsel did not object to the jury instructions for N.J.S.A.
2C:39-5(d), including the language from Kelly. Therefore, we
must assess whether the jury instructions prejudicially affected
Montalvo’s substantial rights and could have led to an unjust
result. Ibid.
V.
Considering the jury instructions given in this case
against the backdrop of the legal principles they were designed
to convey, we cannot agree with the Appellate Division’s holding
that the jury instructions for the N.J.S.A. 2C:39-5(d) charge do
not warrant reversal. We find, rather, that the instructions
constitute plain error.
A.
The court provided a self-defense instruction for Count One
-- violation of N.J.S.A. 2C:39-4(d) -- that included
instructions taken from the Model Jury Charge for that statute,
which, in turn, contains elements of the generic model charge
for self-defense. See Model Jury Charges (Criminal),
“Possession of Weapon with a Purpose to Use It Unlawfully
Against the Person or Property of Another (N.J.S.A. 2C:39-4(d))”
(June 16, 2003) (directing court to charge paragraphs explaining
24
self-defense justification “[i]f the defendant raises the issue
of protective purpose”); see also Model Jury Charges (Criminal),
“Justification - Self Defense in Self Protection (N.J.S.A. 2C:3-
4)” (June 13, 2011) (generic self-defense charge).
Unlike the model charge for N.J.S.A. 2C:39-4(d), the model
charge for N.J.S.A. 2C:39-5(d) contains no acknowledgment that a
self-defense justification might be raised. Thus, in response
to the jury’s question, the court relied not on general self-
defense principles, but on language it found in Kelly, in which
self-defense was raised in connection with Section 5(d).
However, our holding in Kelly is not applicable to
Montalvo’s situation. In Kelly, supra, the defendant armed
herself with a carpet-cutting razor in anticipation of a future
conflict outside the home. 118 N.J. at 373-74. She admitted to
knowing that it was inappropriate to carry the razor outside the
home with no appropriate purpose, but armed herself anyway. Id.
at 385-86. Rather than lawfully defending herself in her home,
the defendant armed herself with the intention of using the
razor as a weapon outside the home. Id. at 373-74.
The defendant’s use of the razor in Kelly is precisely the
improper and unlawful use the Legislature targeted when it
enacted Section 5(d). Id. at 386. We applied the spontaneity
requirement in Kelly because the only scenario in which the
defendant’s use could constitute lawful self-defense would be if
25
she had a manifestly lawful purpose to carry the razor, then
suddenly and spontaneously used it as a weapon to repel
immediate harm. Id. at 385-87. At the same time, if the
defendant had kept the carpet cutter in her home for self-
defense purposes, that would not constitute an unlawful use.
The facts in this case are distinguishable from Kelly.
Here, Montalvo legally possessed a machete in his home. It is
of no matter whether his possession was for roofing or for self-
defense because either would qualify as a lawful purpose.
The parties present contentions about the proper
application of the Second Amendment and suggest that this Court
adopt constitutional tests developed in other jurisdictions.
But this case does not demand an extensive Second Amendment
analysis. We need only observe that the Second Amendment
protects the right of individuals to possess weapons, including
machetes, in the home for self-defense purposes. See Heller,
supra, 554 U.S. at 582, 592, 628, 128 S. Ct. at 2791-92, 2797,
2817, 171 L. Ed. 2d at 651, 657, 679. Thus, Montalvo had a
constitutional right to possess the machete in his home for his
own defense and that of his pregnant wife. Because the court’s
instructions did not convey this principle, the instructions
were erroneous.
B.
26
Further, because the erroneous instructions were capable of
producing an unjust result in this matter, we hold that they
constitute plain error. Chapland, supra, 187 N.J. at 289.
If the jurors believed Montalvo’s version of events, he
never left his apartment with the machete, never used it against
person or property, and never raised it toward Daleckis. Such
possession is protected by the Second Amendment and is
consistent with our statutory scheme and caselaw.
The State asserts that answering an angry knock at the door
with a weapon in hand constitutes possession “under
circumstances not manifestly appropriate for such lawful uses as
it may have.” That position is untenable. The right to possess
a weapon in one’s own home for self-defense would be of little
effect if one were required to keep the weapon out-of-hand,
picking it up only “spontaneously.” Such a rule would negate
the purpose of possessing a weapon for defense of the home. It
would mean that an individual could lawfully answer the door
with a loaded gun in a holster yet would be criminally liable if
he held a cutting tool in hand. In short, Montalvo’s holding of
the machete was a lawful use of that weapon under his version of
events.
On the other hand, the jurors could have convicted Montalvo
under N.J.S.A. 2C:39-5(d) if they believed Daleckis’s account
that Montalvo threatened him with the machete unprovoked, then
27
exited the apartment and chopped at the shared porch. We do not
doubt that chopping the porch with a machete without having a
lawful purpose may constitute possession under circumstances not
manifestly appropriate for lawful use. See G.C., supra, 179
N.J. at 481-84 (finding Section 5(d) applicable where defendant
damaged private property with paintball gun).
The record does not provide us with the information needed
to determine which version of events the jury relied upon to
convict Montalvo under N.J.S.A. 2C:39-5(d). We will not
speculate about the foundations of the jury verdict. See
Harmon, supra, 104 N.J. at 216 (declining to engage in such
inconclusive speculation).
Here, because the jury instructions permitted the jurors to
convict Montalvo either upon a valid theory of guilt ––
threatening Daleckis with the machete unprovoked or taking the
machete outside and damaging the porch -- or upon an invalid
theory -- holding the machete when answering the door -- and
because we cannot know upon which theory the jury found Montalvo
guilty, we find that the jury instructions were clearly capable
of producing an unjust result. R. 2:10-2; Chapland, supra, 187
N.J. at 289; see also Stromberg v. California, 283 U.S. 359,
368, 51 S. Ct. 532, 535, 75 L. Ed. 1117, 1122 (1931) (noting
that potential for reliance on invalid ground vitiates
conviction notwithstanding presence of valid grounds for
28
conviction). We therefore reverse the judgment of the Appellate
Division.
VI.
We also direct our Committee on Model Criminal Jury Charges
to review and revise the charge for N.J.S.A. 2C:39-5(d).
In instructing the jury on unlawful possession of a weapon,
the trial court substantially relied upon the Model Jury Charge
for Section 5(d), which does not contain self-defense language.
Accordingly, we hold that a modified jury instruction is
necessary to clarify that possession of a lawful weapon in one’s
home cannot form the basis of a conviction under N.J.S.A. 2C:39-
5(d). Therefore, we direct the Committee to refashion the
charge consistent with this opinion. Cf. G.C., supra, 179 N.J.
at 484 (directing Committee to modify charge for Section 5(d) to
include threats to property).
We suggest the following language for the Committee’s
consideration in refashioning the charge: Determining whether
the State has proven beyond a reasonable doubt that defendant
possessed a weapon in his home under circumstances not
manifestly appropriate for a lawful use requires special
considerations. Persons may lawfully possess weapons in their
homes, even though possession of those same weapons may not be
manifestly appropriate outside the home. Using a twelve-inch
steak knife in a kitchen to prepare dinner is lawful and
29
possessing it as means of defense in case of a home invasion is
lawful as well; carrying the same knife on the street on the way
to pick up groceries may not be manifestly appropriate.
Individuals may possess in their homes objects that serve
multiple lawful purposes, including the purpose of anticipatory
self-defense. In this case, Montalvo possessed at home a
machete he used in his roofing job. He was lawfully entitled to
possess that machete as a weapon in his home as a means of
defending himself and his family from attack as well. The right
to possess that weapon, however, does not mean that it can be
used without justification.
An individual who responds to the door of his home with a
concealed weapon that threatens no one acts within the bounds of
the law. He need give no justification for what he is lawfully
allowed to do.
On the other hand, an individual may not threaten another
with a weapon, even within the confines of his home, without
lawful justification. Thus, Montalvo could not answer the door
threatening the use of a machete merely for the purpose of
inciting fear in another. He could threaten the use of the
machete, however, if he had a sincere or reasonable belief that
the show of such force was necessary to protect himself or his
wife from an imminent attack.
30
The burden always remains on the State to prove that
defendant did not lawfully possess the weapon in his home or, if
the weapon was threatened against another, that possession of
the weapon was not manifestly appropriate for the purpose of
self-defense.
We note, in so doing, that the spontaneity requirement of
Kelly, from which the trial court quoted in response to the
jury’s question, is not applicable to possession of a legal
weapon in the home for self-defense purposes. Trial courts
should not rely on it in tailoring N.J.S.A. 2C:39-5(d) jury
instructions to such cases.
VII.
The jury instructions provided for N.J.S.A. 2C:39-5(d)
constitute plain error. We therefore reverse the judgment of
the Appellate Division and remand for proceedings consistent
with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s
opinion.
31