NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3894-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CRISOFORO MONTALVO,
Defendant-Appellant.
___________________________________
Submitted January 12, 2016 – Decided February 29, 2016
Before Judges Rothstadt and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 12-06-1157.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lauren S. Michaels, Assistant
Deputy Public Defender, of counsel and on
the briefs).
Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney for respondent
(Paul H. Heinzel, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Crisoforo Montalvo was charged in an indictment
with third-degree possession of a weapon (a machete) for an
unlawful purpose (N.J.S.A. 2C:39-4 (d)) and fourth-degree
unlawful possession of a weapon (a machete) (N.J.S.A. 2C:39-
5(d)). After a jury trial, he was convicted of fourth-degree
unlawful possession of a weapon and sentenced to 540 days.1
Defendant appeals his conviction. We affirm.
On March 24, 2012, defendant was involved in a dispute with
his neighbor, A.D., who lived in the apartment located directly
below his residence. A.D. testified that around midnight he was
in bed reading a book when he heard "some fighting going on
upstairs, some exchanges." He got out of bed and knocked on the
ceiling "just to let [his] neighbors . . . know that [he] wasn't
happy with what was going on upstairs."
A.D. stated that after knocking on the ceiling, he heard
someone descend the stairs from defendant's apartment, walk out
onto a porch shared by the two apartments, grab a table, and
throw it into the street. A.D. then went up to the apartment
and knocked on the door. When defendant opened the door, he was
holding a machete in his hands. A.D. asked defendant why he had
the machete, to which defendant responded, "I don't care."
A.D. testified that after he left the apartment and called
9-1-1 he heard loud yelling coming from upstairs. He then heard
a noise that sounded "like someone was banging metal into
something, cutting something, chopping." The next morning A.D.
1 Defendant was also charged with and convicted of a disorderly-
persons offense of criminal mischief and sentenced to an
eighteen-day concurrent term.
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stated that he observed damage on the patio which appeared to be
caused by a machete.
During the trial, defendant testified that around midnight
on the night of these events, he and his wife were "talking,
laugh[ing], . . . and [A.D.] start[ed] banging on the ceiling."
Defendant stated that he went downstairs and knocked on his
neighbor's door, but there was no answer. Defendant then went
out to the porch and broke the table. After returning to his
apartment, he testified that he was trying to calm his wife
down. When A.D. began to bang on his door, defendant stated
that he grabbed the machete and answered the door, but did not
hold the weapon in a threatening manner.
Officer Jason Gorto, of the Bradley Beach Police
Department, responded to the 9-1-1 call and testified that when
he arrived at the apartment complex, he was greeted by
defendant, who was seated on the front porch. Defendant then
approached the officer holding his hands in the air stating, "I
got nothing." Gorto and another officer did not see any weapons
but noted a broken wooden chair on the edge of the shared porch.
After speaking with defendant's wife, she produced a machete
from the hall closet and handed it over to the officers.
On appeal, defendant argues:
POINT I: BECAUSE IT IS NOT A CRIME TO HOLD
A MACHETE WHILE IN ONE'S OWN HOME TO DETER A
POTENTIAL ATTACK FROM OUTSIDE, THE
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CONVICTION FOR UNLAWFUL POSSESSION OF A
WEAPON MUST BE REVERSED. (Not Raised
below).
POINT II: BECAUSE THE JURY INSTRUCTION WAS
NOT APPROPRIATELY TAILORED TO THE CASE,
FAILED TO EXPLAIN THAT SELF-DEFENSE OR
NECESSITY MUST BE VIEWED FROM THE STANDPOINT
OF A REASONABLE PERSON IN THE DEFENDANT'S
SHOES, AND PROVIDED ONLY AN EXCERPT FROM AN
INAPPLICABLE SUPREME COURT CASE, MONTALVO'S
CONVICTION MUST BE REVERSED.
Defendant contends that the conviction for unlawful
possession cannot stand as the State's evidence was insufficient
to sustain the verdict. We disagree.
Appellate review of a jury verdict as against the weight of
the evidence is only cognizable on appeal when "a motion for a
new trial on that ground is made in the trial court." R. 2:10-1.
Montalvo did not move for an acquittal at the end of the State's
case or a new trial after the verdict, therefore relinquishing
his right to appeal the verdict as against the weight of the
evidence. Even if we consider the argument phrased by Montalvo
that the verdict was a result of insufficient evidence, we find
it to be meritless.
N.J.S.A. 2C:39-5(d) renders it illegal to possess a weapon –
including a machete - "under circumstances not manifestly
appropriate for such lawful uses as it may have." N.J.S.A.
2C:39-5(d). The focus of this statute is not on the defendant's
intended use of the weapon but rather on the circumstances under
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which the defendant possessed the weapon. See State v.
Irizarry, 270 N.J. Super. 669, 673 (App. Div. 1994). The State
must prove circumstances that show a threat of harm to either
person or property. State in re G.C., 179 N.J. 475, 483 (2004).
The combination of a loud argument late at night, the throwing
of his neighbor's table off a porch and then answering his door
while holding a machete (not a commonplace item) provided
sufficient evidence for the jury to assess and determine the
lawfulness of defendant's possession of the machete. In
reviewing all of the State's evidence in the light most
favorable to it, as well as all of the favorable inferences that
could be drawn from it, we find that a reasonable jury could
have found defendant guilty of the stated charge. State v.
Reyes, 50 N.J. 454, 459 (1967).
Regarding defendant's second issue, during its deliberations,
the jury sent a note asking "second charge, unlawful possession
of a weapon, is self-defense considered a lawful use?" There
was a lengthy discussion by the judge with counsel as to the
appropriate answer. Defense counsel stated "I think that [it
is] appropriate to remind the jury that they have taken the
whole circumstances of the situation and if they find that it
was manifestly appropriate, then it is a lawful use." The judge
agreed with defense counsel and re-charged the jury on the
offense including the language
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it is necessary for the State to prove that
. . . 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.
The judge continued by citing to the jury a passage from State
v. Kelly, 118 N.J. 370 (1990) (establishing the limited
circumstances when a self-defense charge applies to an N.J.S.A.
2C:39-5d offense), which was agreed to by both defense counsel
and the State. The judge stated:
Section 5d 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 5d 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
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.
Defendant argues that Kelly is inapplicable to this case
and that the judge's instruction to the jury to consider all of
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the surrounding circumstances in making its determination was
also incorrect.
As these arguments were not made to the trial judge, we
must review them under the plain error standard. R. 2:10-2.
When applied to the review of a jury charge, defendant must
demonstrate a "legal impropriety in the charge prejudicially
affecting [his] substantial rights . . . 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).
We find no error in the judge's charge. Kelly was the
controlling case to address the jury's question and the judge's
use of the cited passage in conjunction with the substantive
charge was appropriate. As the Court stated in Kelly,
[A] jury charge on self-defense is largely
inapplicable in the context of section 5d
offenses. If a person possesses an
instrument for a legitimate purpose and
makes immediate use of that instrument as a
weapon in order to fight off an impending
threat, then, and only then, is self-defense
a justification for a section 5d offense.
[Kelly, supra, 118 N.J. at 381.]
We therefore find no merit in defendant's arguments.
Affirmed.
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