                   NOT FOR PUBLICATION WITHOUT THE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.



                                       2                                 A-3894-13T3
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



                                       3                             A-3894-13T3
            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




                                         4                               A-3894-13T3
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



                                         5                                     A-3894-13T3
          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



                                    6                            A-3894-13T3
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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