dissenting.
To afford fair trial rights to one such as defendant is an arduous challenge. The record does not portray him as a sympathetic figure. In all likelihood he unjustifiably shot another young man in a street rumble. His street talk may be distracting (such as his reference to marijuana as “weed”). Nevertheless, his testimony contained the elements of a self-defense claim — that he was confronted by a threat of serious bodily harm from which he could not safely retreat. The question is whether he is entitled to a fair trial, specifically whether a jury should decide whether his conduct may have been justified by principles of self-defense. Defendant requested a self-defense charge. The trial court refused to charge self-defense on the basis that defendant had described the shooting as accidental and thus could not plead self-defense. That ruling was patently erroneous under State v. Powell, 84 N.J. 305, 317, 419 A.2d 406 (1980), certif. denied, 87 N.J. 332, 434 A.2d 81 (1981), which holds that the fact that defenses are inconsistent does not warrant denial of a self-defense charge. Because of the trial court’s error, the Appellate Division reversed defendant’s conviction and ordered a new trial. 309 N.J.Super. 463, 707 A.2d 486 (1998). Making its own assessment of the facts, the Court has *313reinstated the conviction. For reasons too familiar to be repeated here, the assessment of facts in a criminal case is for a jury, not a judge. State v. Simon, 79 N.J. 191, 398 A.2d 861 (1979). I must therefore dissent.
I
We granted certification primarily to consider, not the grant of a new trial, but whether the Appellate Division had misunderstood a fundamental distinction between the statutory authority to “display” deadly force to repel a threat of non-serious bodily harm under N.J.S.A. 2C:3-11b, and the statutory authority to “use” deadly force under N.J.S.A. 2C:3-4b(2). The State had argued that the Appellate Division misunderstood that the “brandishing” statute is not in itself a justification for the “use” of deadly force. Justification for the use of force or deadly force must come from N.J.S.A. 2C:3-4. All that 2C:3-11b does is to except the “production” or display of a weapon to instill the fear of deadly force in someone from the definition of deadly force.1 The flaw in the Appellate Division’s opinion led it to conclude that although defendant may not have been in imminent peril of death or serious bodily harm, firing the gun under such circumstances could be justified because the initial production of the gun was a justifiable response to the threatened harm. I agree entirely with the Attorney General that unless defendant was in imminent peril of death or serious bodily harm, firing the gun was unjustified.
Judge Baime recently furnished this basic description of our statutes and cases dealing with the justification of self-defense:
The use of force against a person in self-defense 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 that person. N.J.S.A. *3142C:3-4a. The defendant must harbor an actual, reasonable belief that the use of force on his own part is necessary to prevent the imminent application of unlawful force by the assailant. State v. Kelly, 97 N.J. 178, 199-200, 478 A.2d 364 (1984). The doctrine of self-defense exonerates a person from criminal liability even though his belief in the need to use force to repel an attack is later proven mistaken. Id. at 198, 478 A.2d 364. “Detached reflection cannot be demanded in the presence of an uplifted knife,” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed, 961, 963 (1921), and the law thus recognizes the frailties of human perception, requiring only a reasonable, and not necessarily correct, judgment. See State v. Hippelwith [Hipplewith], 33 N.J. 300, 316-17, 164 A.2d 481 (1960); State v. Mount, 73 N.J.L. 582, 585-86, 64 A. 124 (E. & A.1906). While it is not requisite that actual necessity exist, the justification of self-defense requires an honest belief on the part of the defendant in the need to use force. State v. Kelly, 97 N.J. at 198, 478 A.2d 364. Honesty, alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that his belief in the need to use force was reasonable. Id. at 199, 478 A.2d 364. The reasonableness of the defendant’s belief is to be determined by the jury using an objective standard of what a reasonable person would have done in defendant’s position in light of the circumstances known to defendant at the time the force was used. Id. at 199-200, 478 A.2d 364.
Further, the defendant may use .deadly force in self-defense only if he “reasonably believes that such force is necessary to protect himself against death or serious bodily harm.” N.J.S.A. 2C:3-4b(2). Two additional limitations on the use of deadly force exist. First, the defendant may not use deadly force if he, “with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter.” N.J.S.A. 2C:3-4b(2)(a). Second, the defendant may not use such force if he “knows that he can avoid the necessity of using such force with complete safety by retreating....” N.J.S.A. 2C:3-4b(2)(b). Deadly force is defined as “force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.” N.J.S.A. 2C:3-11b. This definition encompasses the act of “[pjurposely firing a firearm in the direction of another person.” Ibid.
[State v. Bryant, 288 N.J.Super. 27, 34-35, 671 A.2d 1058 (App.Div.), certif. denied, 144 N.J. 589, 677 A.2d 761 (1996).]
Thus, a person who is confronted on the street by an assailant who uses or threatens physical but non-deadly force may defend in kind, that is, with non-deadly force, if the actor reasonably believes that such force is immediately necessary for self-protection. That person, however, may not pull out a gun or other deadly weapon and use deadly force in response to a relatively benign attack.
By misconstruing the statutory definition of deadly force, the Appellate Division essentially held that the eventual use of deadly *315force in such a situation can be justified if the actor has initially brandished the gun or other weapon to threaten deadly force to ward off the non-deadly assault. That is incorrect. N.J.S.A. 2C:3-11b simply states that the threat to use deadly force by the “production” of a weapon does not constitute the employment of deadly force. That authority to brandish a deadly weapon is strictly limited to creating the apprehension that deadly force will be used. The statute draws the line there; it does not allow the actor to cross the line and use deadly force unless confronted with death or serious bodily harm.
At oral argument, the Attorney General agreed that “[i]t could be a defense to a fourth-degree pointing charge2 that the defendant felt he was in fear [not of] serious bodily harm but merely bodily harm, and that he pulled out or displayed or brandished a weapon to create the apprehension that he would respond with deadly force.” The Attorney General’s concern, however, was to clarify that the “brandishing” statute does not permit the actor to cross the line and actually fire the weapon unless faced with imminent fear of death or serious bodily harm. “And [he concluded] that’s the key to this ease.”
Ultimately, N.J.S.A. 2C:3-4 determines whether either non-deadly or deadly force is justified. The Attorney General also acknowledged that “if the defendant were facing imminent danger of serious bodily harm or death [from which he could not safely retreat,] he could purposely fire the weapon.” As noted, the State’s primary concern was that the Appellate Division found that circumstance not to be present but nevertheless concluded that self-defense had to be charged because of the definition in 2C:3-11b, which excepts from the definition of deadly force the threat of using deadly force.
*316II
The principles of law having been clarified, the question is whether there was evidence in the record that defendant was facing imminent danger of death or serious bodily harm from which he could not safely retreat. The Court considers only one side of the evidence. It excludes a fair consideration of defendant’s evidence. All that is required for a charge of self-defense is that there be in evidence a rational basis for the charge either in the defendant’s ease or the State’s case. The issues of justifiable use of non-deadly force and justifiable use of deadly force were clearly raised in this case.
A.
Because there was uncontroverted evidence of a struggle for the gun, there was a rational basis to charge on the justifiable use of deadly force.
Defendant was standing alone at midnight on a street corner when he was surrounded by five strangers. Two of the individuals approached him and “got in his face.” He feared for his safety, explaining that “I thought they were going to jump me.” He took out the gun and began waving it. He said, “I was trying to get them to back off.” Another witness corroborated his testimony. The witness said that when defendant took out the gun and started waving it, Smith, the victim, grabbed the gun. Once Smith grabbed the gun and a struggle ensued, defendant was clearly entitled to the charge on the use of deadly force. Simply because defendant claimed that the shooting was an accident did not mean that the jury could not have found that he had some level of culpable intent in trying to rid himself of Smith. If Smith succeeded in getting hold of the gun, he could have shot defendant. A life-or-death struggle over a deadly instrumentality clearly entitles the defendant to a charge on the justifiable use of deadly force. People v. Bedoya, 288 Ill.App.3d 226, 224 Ill.Dec. 37, 681 N.E.2d 19, 27 (1997), appeal denied, 174 Ill.2d 570, 227 Ill.Dec. 9, 686 N.E.2d 1165 (1998); see also Commonwealth v. McFadden, 402 PaSuper. 517, 587 A.2d 740 (1991) (holding that *317struggle for gun with estranged husband entitled defendant to self-defense charge). In Bedoya, the court held that the defendant’s claim
that the gun fired accidentally during the struggle [for the gun] does not eliminate self-defense. The firing of the gun might have been an unintended act, but, according to [the defendant] it happened during a life [or] death struggle. Where there is evidence of self-defense in addition to evidence of accident, the defendant has the right to rely “on an accident theory as to the ultimate injury and a self-defense theory as to his preceding acts.”
[Ibid, (citing People v. Robinson, 163 Ill.App.3d 754, 114 Ill.Dec. 898, 516 N.E.2d 1292 (1987), appeal denied, 119 Ill.2d 570, 119 Ill.Dec. 394, 522 N.E.2d 1253 (1988)).]
Contrary to the Court’s assertion, defendant does not argue that, assuming he had a reasonable fear for his life, the struggle over the gun justified him “in using deadly force in self-defense without any duty to first retreat, even if he could have retreated with complete safety.” Ante at 300, 729 A.2d at 1025. Defendant acknowledges that he had a duty to retreat if that were possible, but whether he could have retreated safely is a factual matter properly to be determined by a jury.
Under the undisputed circumstances of a struggle for a gun, the foundation for a charge of justifiable use of deadly force was in the evidence. The rational basis test for charging self-defense requires “more than a mere ‘scintilla of evidence’, [but] it is nevertheless * * * a low threshold.” State v. Erazo, 126 N.J. 112, 123, 594 A.2d 232 (1991). That standard was clearly met.
B.
There is no doubt that defendant was entitled to a self-defense instruction on the use of non-deadly force in pointing a loaded gun at the assailants.
As noted, supra (op. at 298, 729 A.2d at 1024), the Attorney General readily conceded this point. The Court also acknowledges, as it must, that defendant was entitled to a self-defense charge on the fourth-degree offense of pointing the gun, but limits its discussion to the “self-defense issues ... related to the charge of second-degree aggravated assault.” Ante at 300, 729 A.2d at *3181025.3 That is an unfair treatment of the record. There is nothing in the record to sustain the conclusion that defendant was conceding that he had unjustifiably drawn and pointed a gun at his assailants. That he claimed simply to have waved it does not mean that he is precluded from claiming self-defense if the jury found that he pointed the gun.
In addition, the prosecutor argued vigorously that even if the discharge was accidental, defendant was responsible for the attack because he took out the gun without any justification. The prosecutor argued to the jury that because defendant did not have to take out the gun, whatever happened thereafter was his fault. The jury was never instructed that he could have been justified in taking out the gun. Thus, even if the jury believed defendant’s version of events — that he took out the gun because he was afraid and that the gun went off accidentally — the jury could have improperly convicted him because the jurors believed (as the prosecutor related the facts) that his unjustified brandishing of the weapon made him responsible for everything that happened. The jury was never told otherwise. Because of the trial court’s error in ruling that only an “accident” defense could be presented to the jury, the issue of a justifiable brandishing of the gun was taken away from the jury. The jury should have been instructed that it could have found that defendant was entitled to take out the gun in the first instance if he reasonably believed that such force was necessary for protection against the unlawful force of another.
*319III
In short, it is undisputed that defendant was standing alone at midnight on a side street in East Orange. After an exchange of words, two members of a group of five came within a few feet of defendant and menaced him. Whether it was reasonable to believe that he was about to be attacked by a menacing crowd is clearly a jury question under those circumstances. Defendant did not approach an unarmed victim. Five people approached him. One of them reached for defendant’s gun. Defendant’s role as the aggressor depends on whom the jury believes. It is clear from the facts that the evidence supported a charge on the justifiable use of both non-deadly and deadly force. There is simply no principled way of avoiding it. There is no authority for the proposition that even if one is not found to be entitled to use deadly force, that somehow disentitles the actor to an instruction on the justifiable use of non-deadly force.
The reversible error that the trial court committed was in failing to charge the jury that if it found that defendant had shot the victim because defendant was in fear of his life or serious bodily harm, the jury could then find that he acted in self-defense. In addition, the jury should also have been charged concerning the justifiable use of non-deadly force, that defendant would have been justified in brandishing the weapon as a defense to the second-degree aggravated assault charge.
We have always placed an extraordinarily high value on the importance of appropriate and proper jury charges to the right to trial by jury. “[Ejrroneous instructions on matters or issues material to the jury’s deliberations are presumed to be reversible error.” State v. Collier, 90 N.J. 117, 122-23, 447 A.2d 168 (1982) (citing State v. Green, 86 N.J. 281, 291, 430 A.2d 914 (1981)). The right to a trial by jury includes certain intangible but real benefits to a defendant that are lost whenever the jury is induced to think incorrectly in terms of guilt. State v. Ingenito, 87 N.J. 204, 216-17, 432 A.2d 912 (1981). So paramount is the duty to ensure a fair trial that a jury must deliberate in accordance with correct *320instructions even when such instructions are not requested by counsel. Unless a chosen trial strategy dictates against it, and perhaps in some cases even when that is the ease, the court ordinarily has a supervening responsibility to charge the jury concerning any version of the offense “clearly indicate[d]” by the evidence to require proper jury consideration. State v. Choice, 98 N.J. 295, 299, 486 A.2d 833 (1985). “This judicial obligation, to assure the jury’s impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions, is at the core of the guarantee of a fair trial.” State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979) (citations omitted).
Today’s decision infringes on these core guarantees of a fair trial. I would be more concerned if I believed that the decision were a portent of future application. I doubt that will occur. For example, the Court suggests that because defendant had a gun he is categorically unable to assert that he was in fear of imminent bodily harm. Ante at 309-10, 729 A.2d at 1030-31. Police officers charged with homicide would be surprised to learn that a self-defense charge would be categorically unavailable to them because they had a gun and the victim did not. In New Jersey, the trial of Teaneck police officer Gary Spath is a recent instance of self-defense being pled to the charge of shooting Phillip Fennell, a sixteen-year-old unarmed teenager. Henry Gotlieb, A Dream Team of One, 152 N.J.L.J. 851, June 1, 1998; see also Stephen Gillers, Four Officers, One Likely Strategy, N.Y. Times Op. Ed., Apr. 3, 1999, at A15 (discussing police shooting of unarmed civilian).
More articulate civilians such as Bernhard Goetz will also likely be given their right to have a jury determine their guilt. He, having been surrounded late at night on a subway train by menacing youths, was able to plead self-defense to a shooting charge even though he had a gun and the youths did not. Abraham Abramovsky, Criminal Law and Procedure Justifica,tion: The Theory of Self-Defense, 211 N.Y.L.J. 52, Mar. 18, 1994.
*321Hussan Moore is not a celebrity defendant. He is a citizen who encountered a threat of violence that most of us will likely never experience. An angry group of youths surrounded him late at night on a city street. Two of them rushed him. A fight ensued over a gun that he displayed. It is one thing for the Court to discuss safe retreat, at its remove from the streets; it is quite another thing to contemplate a safe retreat from the perspective of the person on the street confronted with violence and a threat of serious bodily harm. The Constitution requires that we let a jury decide the reasonableness of Moore’s conduct.
STEIN, J., joins in this opinion.
For reversal and reinstatement — Chief Justice PORITZ, and Justices HANDLER, POLLOCK, GARIBALDI, and COLEMAN — 5.
Dissenting — Justices O’HERN and STEIN — 2.
N.J.S.A. 2C:3-11b provides in pertinent part:
A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force. ■
The jury was instructed that it was permitted to consider a lesser-included offense of fourth-degree aggravated assault based on pointing or brandishing the gun.
In explaining its ruling, the Court mixes the concepts of a failure of proof defense (the gun went off accidentally) with the concept of justification (I fired the gun intentionally but did it in self-defense). The Court says "[a]n accidental shooting, when viewed in the context of the requisite mental state for second-degree aggravated assault, is permitted justification under the Code.” Ante at 301, 729 A.2d at 1025-26, see Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L.Rev. 1897 (1984). “Our law has always recognized the difference between a defense based on the existence of a fact that negates an essential element of the crime as defined, and the narrower concept of an affirmative defense that excuses conduct that is otherwise unlawful." State v. Bowens, 108 N.J. 622, 632, 532 A.2d 215 (1987). Hence, it is incorrect for the Court to minimize the absence of a self-defense charge.