SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4003-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN COLON, a/k/a B-BOY JUAN 

and B-BOY,

Defendant-Appellant.

_________________________________

Submitted September 13, 2016 – Decided

Before Judges Fasciale and Kennedy.

On appeal from the Superior Court of New 

Jersey, Law Division, Mercer County, 

Indictment No. 13-03-0344.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Michele E. Friedman, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Angelo J. Onofri, Acting Mercer County 

Prosecutor, attorney for respondent (Dorothy 

Hersh, Special Deputy Attorney General/Acting 

Supervising Assistant Prosecutor, of counsel 

and on the brief).

PER CURIAM

Defendant appeals from his convictions for second-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

April 3, 2017
2 A-4003-14T4

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); and second-degree certain persons not to possess 

firearms, N.J.S.A. 2C:39-7. We affirm. 

The incident that led to defendant's convictions occurred in 

a residence where several people lived. Defendant and one of the 

residents (the resident) were arguing, which awakened defendant's 

girlfriend (the girlfriend) and her friend (the friend). Defendant 

fired a gun at the resident as the resident ran up the stairs. 

The police searched the residence, found a bullet hole at the top 

of the stairs, and located a projectile above another bullet hole 

in a bedroom ceiling. Defendant left the state and went to 

Florida. When the law enforcement officers found defendant there, 

he blurted out that he shot at the resident and another individual 

in the residence. 

After the appropriate merger, the court imposed a 

discretionary twenty-year prison term, subject to the No Early 

Release Act, N.J.S.A. 2C:43-7.2, on the aggravated assault 

conviction. The judge sentenced defendant to eight years in prison 

with four years of parole ineligibility on the conviction for 

unlawful possession of a weapon, concurrent to eight years in 

prison with five years of parole ineligibility on the certain 

persons conviction. The judge made the concurrent sentences on 
3 A-4003-14T4

the weapons convictions consecutive to the imposition of the 

twenty-year prison term. 

On appeal, defendant raises the following arguments: 

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN 

FAILING TO ISSUE THE REQUESTED JURY 

INSTRUCTION ON [DEFENDANT'S] ELECTION NOT TO 

TESTIFY. 

(Not raised below) 

POINT II

THE TRIAL COURT ERRED TO [DEFENDANT'S] 

DETRIMENT IN FAILING TO CHARGE THE JURY ON THE 

LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT 

BY POINTING A FIREARM. 

(Not raised below)

POINT III

THE TRIAL COURT SHOULD HAVE GRANTED THE 

DEFENSE'S MOTION FOR A MISTRIAL AFTER A 

DETECTIVE TESTIFIED THAT A "CERTAIN PERSONS" 

CHARGE WAS LODGED AGAINST [DEFENDANT]. 

POINT IV

THE INTRODUCTION AND REPEATED REFERENCES TO 

THE UNSANITIZED DETAILS OF [DEFENDANT'S] PRIOR 

CONVICTIONS TO PROVE THE ["]CERTAIN PERSONS["] 

OFFENSE DEPRIVED HIM OF A FAIR TRIAL. 

(Not raised below)

POINT V 

THE PROSECUTOR COMMITTED MISCONDUCT WHEN 

PROVIDING THE JURY WITH HIS PERSONAL OPINION 

REGARDING [DEFENDANT'S] PURPORTED STATEMENT 

TO THE DETECTIVES. 

(Not raised below)
4 A-4003-14T4

POINT VI

[DEFENDANT'S] SENTENCE IS MANIFESTLY 

EXCESSIVE AND UNDULY PUNITIVE.

A. The Sentencing Court 

Improperly Considered [Defendant's] 

Lack of Remorse and Refusal to 

Accept Responsibility When 

Imposing the Sentence.

B. The Sentencing Court Ascribed 

Undue Weight to [Defendant's] Prior 

Convictions, Resulting In 

Duplicative Consideration of His 

Prior Record.

C. The Sentencing Court Erred in 

Ordering Count Two to Run 

Consecutively to Counts Six and 

Seven. 

After considering the record and the briefs, we conclude that 

defendant's arguments in Points V and VI are "without sufficient 

merit to warrant discussion in a written opinion[.]" R. 2:11-

3(e)(2). 

I.

We turn first to defendant's argument that the trial judge 

erred by not giving the election-not-to-testify charge. 

Defendant, who did not testify at trial, argues that the failure 

to give the charge resulted in a violation of his right against 

self-incrimination. 

A non-testifying criminal defendant is entitled to a noadverse-inference instruction, also known as a Carter instruction. 
5 A-4003-14T4

Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 

241 (1981). Our Supreme Court has repeatedly held that "the trial 

court, on request, must instruct the jury that it may draw no 

negative inferences from [the] defendant's silence[.]" State v. 

Daniels, 182 N.J. 80, 90 (2004) (citation omitted). Although 

"silence may suggest to the jury that the defendant has something 

to hide," that concern "may be tempered by the trial court's 

instruction to the jury that it should not draw an adverse 

inference [therefrom]." State v. Brunson, 132 N.J. 377, 385 (1993) 

(citations omitted). The judge should have given the charge, 

although defense counsel never objected to that failure. 

In State v. Camacho, our Supreme Court considered whether the 

failure to provide the jury with a Carter instruction was per se 

error warranting automatic reversal. 218 N.J. 533, 537 (2014). 

The Court noted that although the instruction is of constitutional 

dimension, the failure to provide the instruction is akin to a 

trial error, rather than a structural one, and subject to a 

harmless-error analysis. Id. at 550–52. The error is rendered 

harmless if the trial's outcome would have been the same had the 

error not been made. Id. at 554. As such, we reverse only if the 

error was "clearly capable of producing an unjust result[.]" R.

2:10-2. Such is not the case here. 
6 A-4003-14T4

The State presented testimony from the girlfriend and friend, 

two eyewitnesses to the shootings. They testified consistently 

that defendant was present in the residence and fired the gun up 

the stairs. Moreover, after conducting the search, the police 

found two bullet holes located in the direction in which defendant 

fired the weapon: at the top of the stairs and in the bedroom 

ceiling. The police also seized one of the projectiles from above 

the ceiling bullet hole, which corroborated the eyewitness 

testimony that defendant fired the gun that night. Defendant, who 

had fled from New Jersey and was discovered shortly thereafter in 

Florida, blurted out to the police that he fired the weapon. 

In light of this overwhelming evidence, the trial judge's

failure to administer a Carter instruction amounts to nothing more 

than a harmless error. Moreover, the record reveals that the 

judge provided the jury with the "functional equivalent" of a 

Carter instruction. Camacho, supra, 218 N.J. at 554. On multiple 

occasions, the trial judge explained to the jury the State's burden 

of proof and reiterated that defendant had no obligation to present 

any evidence. 

II. 

We reject defendant's argument made for the first time on 

appeal that the trial judge failed to give an instruction on a

lesser-included offense of fourth-degree aggravated assault, 
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N.J.S.A. 2C:12-1(b)(4). Defendant contends that instead of 

convicting him of second-degree aggravated assault, the jury could 

have convicted him of fourth-degree aggravated assault because he 

did not intend to harm the resident. 

A defendant's failure to object to jury instructions is 

"considered a waiver to object to the instruction[s] on appeal." 

State v. Maloney, 216 N.J. 91, 104 (2013). In the absence of an 

objection to a charge or request for a charge, however, "a trial 

court has an independent obligation to instruct on lesser-included 

charges when the facts adduced at trial clearly indicate that a 

jury could convict on the lesser while acquitting on the greater 

offense." State v. Jenkins, 178 N.J. 347, 361 (2004). This is 

because "[a]n erroneous jury charge 'when the subject matter is 

fundamental and essential or is substantially material' is almost 

always considered prejudicial." Maloney, supra, 216 N.J. at 104-

05 (quoting State v. Green, 86 N.J. 281, 291 (1981)). 

Such errors present "'[a] presumption of reversible error 

. . .' that can only be excused if the error is determined to be 

'harmless beyond a reasonable doubt.'" Id. at 105 (quoting State 

v. Collier, 90 N.J. 117, 123 (1982)). We therefore consider 

defendant's challenge to the court's failure to charge fourthdegree aggravated assault as a lesser-included offense under the 

plain error standard. R. 2:10-2; Maloney, supra, 216 N.J. at 104;
8 A-4003-14T4

see also Jenkins, supra, 178 N.J. at 360 (finding the plain error 

standard applied to defendant's challenge on appeal to a jury 

charge to which he did not object at trial). We must first 

determine if the court erred by failing to give the instruction 

and if it did, whether the failure "was clearly capable of 

producing an unjust result such that a reasonable doubt is raised 

as to whether the error led the jury to a result it otherwise 

might not have reached." Jenkins, supra, 178 N.J. at 360-61 

(quoting State v. Brims, 168 N.J. 297, 306 (2001)); State v. 

Ramsey, 415 N.J. Super. 257, 266 (App. Div. 2010), certif. denied, 

205 N.J. 77 (2011).

We conclude the facts adduced at trial do not clearly indicate 

that a jury could convict on the lesser while acquitting on the 

greater offense. Two eyewitnesses testified that defendant fired 

the gun in the direction of the resident and the friend. The 

police verified that the bullet at the scene made a hole "straight 

ahead" at the top of the stairs. The location of the bullet holes 

and projectile corroborate the direction in which defendant fired 

the gun. Moreover, defendant admitted to shooting the gun in the 

direction of the resident. Even if the lesser charge was clearly 

indicated by the evidence, which is not the case, we further 

conclude that the error was harmless beyond a reasonable doubt.
9 A-4003-14T4

III.

Defendant argues that the judge erred by denying his motion 

for a mistrial after a detective made a fleeting reference to 

"certain persons" in his testimony. 

"A motion for a mistrial is addressed to the sound discretion 

of the court; and the denial of the motion is reviewable only for 

an abuse of discretion." State v. Witte, 13 N.J. 598, 611 (1953), 

cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). 

"Unless the vice is plainly ineradicable by an instruction to the 

jury, a mistrial is not allowable of right." Ibid. "A mistrial 

is an extraordinary remedy" that should be employed "[o]nly when 

there has been an obvious failure of justice." State v. Mance, 

300 N.J. Super. 37, 57 (App. Div. 1997). 

"Whether manifest necessity mandates the grant of a mistrial 

depends on the specific facts of the case and the sound discretion 

of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing 

State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has 

an appropriate alternative course of action[,]" it should deny a 

request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J.

at 436-37). The trial judge in this case perceived no obvious 

failure of justice, and nor do we. 

Here, a detective testified on direct examination that 

defendant had been charged with "[a]ggravated assault, aggravated 
10 A-4003-14T4

assault, possession of a weapon for an unlawful purpose, unlawful 

possession of a weapon and certain persons." Defense counsel 

objected, the judge sustained the objection, struck the question 

and answer from the record, and gave a limited instruction 

directing the jury to disregard the question and answer. We must 

assume that the jurors followed the court's instructions. State 

v. T.J.M., 220 N.J. 220, 237 (2015) (citing State v. Ross, 218 

N.J. 130, 152 (2014)). Given our standard of review, we see no 

abuse of discretion. 

IV. 

After the jury found defendant guilty of aggravated assault 

and the related weapons offenses, the matter proceeded to the 

trial on the certain persons charge. As it relates solely to the 

State's proof on the certain persons charge, defendant argues for 

the first time on appeal that the trial court's failure to sanitize 

the details of his prior convictions prejudiced him. We conclude 

that such a failure was not clearly capable of producing an unjust 

result. 

We are mindful that a trial court's evidentiary rulings are 

"entitled to deference absent a showing of an abuse of discretion, 

i.e., there has been a clear error of judgment." State v. Brown, 

170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 

484 (1997)). "Under that standard, an appellate court should not 
11 A-4003-14T4

substitute its own judgment for that of the trial court, unless 

'the trial court's ruling was so wide of the mark that a manifest 

denial of justice resulted.'" Ibid. (quoting Marrero, supra, 148 

N.J. at 484). We see no clear error of judgment. 

Because defendant did not stipulate to his prior convictions, 

the assistant prosecutor introduced into evidence defendant's 

prior judgments of conviction. This evidence established that 

defendant had prior convictions for assault and robbery. 

Defendant's prior convictions have no other evidentiary 

significance other than demonstrating that defendant had committed 

a predicate offense. 

We emphasize that the jury heard the complained-of evidence 

after it found him guilty of aggravated assault and the related 

weapons charges. Nevertheless, the judge should have sanitized 

the convictions during the trial on the certain persons offense. 

The judge's strong jury instructions, however, overcame any

prejudice. The judge repeatedly instructed the jury on defendant's 

presumption of innocence, admonished the jury about using the 

prior-conviction evidence to decide whether defendant has a 

propensity to commit crimes, and reminded the jury that the State 

must prove each element of the offense beyond a reasonable doubt. 

Moreover, the judge followed the Model Jury Charge (Criminal), 
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"Certain Persons Not To Have Any Firearms" [N.J.S.A. 2C:39-

7(b)(1)] (2005). 

Affirmed.