SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3817-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WOO-JIN HWANG, 

Defendant-Appellant.

_______________________

Submitted November 10, 2020 – Decided

Before Judges Yannotti and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 11-02-0367.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Matthew T. Mierswa, Designated Counsel, 

on the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (Craig A. Becker, Assistant County 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 20, 2020
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A Bergen County grand jury charged defendant Woo-Jin Hwang and his 

co-defendant, Marcello Castillo, in four counts of a five-count indictment with 

first-degree possession of a controlled dangerous substance (CDS), 

Methylenedioxymethamphetamine (Ecstasy), with intent to distribute, contrary 

to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count one); third-degree 

possession of a CDS (marijuana) with intent to distribute, contrary to N.J.S.A. 

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession 

of a CDS (Ecstasy) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) 

and N.J.S.A. 2C:35-5(b)(3) (count three); and second-degree possession of a 

CDS (Ecstasy) with intent to distribute within 500 feet of a public park, contrary 

to N.J.S.A. 2C:35-7.1 (count four). Castillo was also charged with fourth-degree 

unlawful possession of credit cards, contrary to N.J.S.A. 2C:21-6(c)(2) (count 

five).

Prior to trial, Castillo pled guilty to counts one and two, and agreed to 

testify against defendant. The trial judge denied defendant's motion to suppress 

evidence seized from his person and a backpack he was carrying at the time of 

his arrest.
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Following a trial, the jury convicted defendant of counts one, two, and 

three, and found him not guilty of count four. The judge sentenced defendant 

to an aggregate sixteen-year prison term.

On direct appeal, this court ruled that the judge erred by denying 

defendant's motion to suppress, reversed defendant's conviction, and remanded 

the matter for a new trial. State v. Hwang, No. A-2236-12 (App. Div. Nov. 19, 

2015). On remand, the State dismissed counts two and three, which concerned 

the suppressed evidence. 

Following a multi-day trial, the jury convicted defendant of count one, 

first-degree unlawful possession of a CDS (Ecstasy). The judge sentenced 

defendant to twelve years in prison, with a six-year period of parole ineligibility. 

This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE ASSISTANT PROSECUTOR'S REPEATED 

IMPROPER REMARKS DURING SUMMATION 

UNDULY INFLUENCED THE JURY AND 

DEPRIVED [DEFENDANT] OF HIS 

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

POINT II

THE COURT ERRED BY FAILING TO INSTRUCT 

THE JURY ON "MERE PRESENCE" AS IT 
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RELATES TO CONSTRUCTIVE POSSESSION. (Not 

raised below).

 After reviewing the record in light of the arguments advanced on appeal, we 

affirm.

I.

In September 2010, federal customs agents intercepted two packages from 

Canada that were addressed to Castillo at a post office box in Ridgewood. The 

packages contained 990 Ecstasy pills. The Department of Homeland Security 

reached out to the Bergen County Prosecutor's Office and arranged to make a 

controlled delivery of the packages to the post office on September 20, 2010.

Castillo testified he owed defendant money and that defendant used this 

debt as leverage to persuade Castillo to obtain the post office box for defendant's 

use. Defendant located a post office that would not require Castillo to provide 

a valid government-issued photo identification and Castillo rented the box.

When defendant and Castillo arrived at the post office, Castillo presented 

the undercover postal inspector with a "slip" confirming he had received two 

packages in the box. The agent retrieved the packages from the office and placed 

them on the counter. Defendant and Castillo had a brief discussion and Castillo 

told the agent that he no longer wanted the packages. The agent took the 

packages back to the office.
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Defendant and Castillo conferred with each other and then asked to speak 

to the agent. At that point, defendant asked to see the packages again. The agent 

retrieved the packages and placed them on the counter. After some further 

discussion with Castillo, defendant told the agent the packages were Castillo's 

and they would take them. The agent asked defendant for identification, but he 

refused to provide it. Castillo signed for the packages and the two men left the 

post office together. The police arrested them as soon as they got outside.

II.

In Point I of his brief, defendant argues that the prosecutor's remarks 

during summation denied him a fair trial. We disagree.

During his closing, the prosecutor three times referred to certain 

arguments raised by defense counsel as "red herrings." Defense counsel did not 

object to any of these comments. However, on the third occasion, the trial judge 

called the attorneys to sidebar and told the prosecutor, "[m]ore than once you've 

made reference to red herrings. This time you used it toward the defendant." 

The judge also advised the prosecutor that he had used this term "a couple of 

times. It wasn't objected to, but this time you crossed the line." 

After concluding the sidebar, the judge gave the jury the following 

curative instruction:
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Ladies and gentlemen, I'm going to instruct you 

as follows. The comment made by [the prosecutor] just 

a moment ago about falling for a red herring, you are to

completely disregard that comment. It's not to enter 

into your deliberations whatsoever.

I'm going to instruct you further that comments 

made by counsel in their closing statements [are] not 

evidence. The only evidence that you are to consider is 

the evidence from the witness stand, any items admitted 

into evidence.

Later in his summation, the prosecutor discussed the testimony presented 

by the State's expert concerning the manner in which the Ecstasy pills had been 

packaged and, in the course of that discussion, stated:

The third element is that the defendant possessed 

or had under his control [Ecstasy] with the intent to 

distribute [over 900] pills. And think about what we 

heard from Sergeant Perez. What kind of drug it is, 

who it's marketed to, how it's marketed, [its] value . . . 

. [Y]ou can look through the bag when you take this in 

the back. The yellow, they got alien head markings. 

They're stamped in a way to sell, as he said, to people 

who are between the ages of [eighteen] and [twentyfive]. That they come in all different shapes, and sizes, 

and stacks.

This isn't a single dosage. This is multiple doses 

and each . . . pill is worth 20 to $30. So it's indisputed 

[sic][1]that it would be possessed with the intent to 

distribute.

1

 Presumably, the prosecutor intended to state it was "undisputed" rather than 

"indisputed."
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Defense counsel objected to the prosecutor's last remark because although 

the manner in which the pills were packaged was undisputed, the question of 

whether they were possessed with intent to distribute was not. In response to 

defendant's objection, the judge immediately gave the jury the following strong, 

curative instruction:

Ladies and gentlemen, you are to disregard the 

last comment that it is indisputed [sic] that the CDS was 

possessed with the intent to distribute. Okay? It's not 

to enter into your deliberations whatsoever.

Again, comments made by counsel in their 

closing statements are not evidence. The evidence that 

you are to consider is the evidence from the witness 

stand and the items that were admitted into evidence 

only.

It is for you to decide. You are the judges of the 

facts of this case. It is for you to decide whether or not 

the CDS in this case was possessed with the intent to 

distribute. So disregard that last remark.

Still later in his closing statement, the prosecutor remarked that Castillo 

had agreed to "truthfully testify at trial" in return for his plea agreement. He 

also stated that because Castillo had already served his custodial sentence, the 

State would be unable to take back the plea if Castillo failed to tell the truth. 

Defense counsel did not object to this comment.
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Nevertheless, the judge called both attorneys to sidebar and told the 

prosecutor that his statement that the State could do nothing to Castillo if he lied 

on the stand was not accurate because, contrary to the prosecutor's remark, the 

State could still rescind the plea. The judge then gave the following curative 

instruction to the jury:

Ladies and gentlemen. I'm going to 

instruct you as follows. You are to 

disregard the comments of the [p]rosecutor 

with respect to there being no potential 

consequence to Mr. Castillo if he refused 

to testify in this case. You're to disregard 

those comments. They're not to enter into 

your deliberations whatsoever. Okay?

Again, you're the judge of the facts. The 

evidence you are to consider is the 

evidence from the witness stand and the 

items admitted into evidence.

Prosecutorial misconduct is not a basis for reversal unless the conduct 

"was so egregious that it deprived [the] defendant of a fair trial." State v. 

DiFrisco, 137 N.J. 434, 474 (1994). Considerable leeway is afforded to 

prosecutors in presenting their arguments at trial "as long as their comments are 

reasonably related to the scope of the evidence presented." State v. Frost, 158 

N.J. 76, 82 (1999). Thus, "[i]t is not improper for the prosecution to suggest 

that the defense's presentation was imbalanced and incomplete." State v. 
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Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014) (quoting State v. 

Timmendequas, 161 N.J. 515, 593 (1999)). However, "'[a] prosecutor is not 

permitted to cast unjustified aspersions' on defense counsel or the defense." 

Frost, 158 N.J. at 86 (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App. 

Div. 1991)).

To determine if the alleged misconduct was sufficiently egregious to 

warrant reversal, the appellate court "must consider 'whether defense counsel 

made a timely and proper objection, whether the remark was withdrawn 

promptly, and whether the court ordered the remarks stricken from the record 

and instructed the jury to disregard them.'" Patterson, 435 N.J. Super. at 508 

(quoting State v. Wakefield, 190 N.J. 397, 438 (2007)). As a general rule, a 

remark will not be considered prejudicial if no objection was made. State v. 

R.B., 183 N.J. 308, 333 (2005) (quoting Frost, 158 N.J. at 83). "The failure to 

object suggests that defense counsel did not believe the remarks were prejudicial 

at the time they were made. The failure to object also deprives the court of an 

opportunity to take curative action." Ibid. (quoting Frost, 158 N.J. at 84).

In that regard, the trial court can give the jury a curative instruction to 

remedy any prejudicial effect caused by a prosecutor's improper remark. State 

v. Hawk, 327 N.J. Super. 276, 283 (App. Div. 2000). "The type of necessary 
10 A-3817-17T2

curative instruction is in the discretion of the trial court judge who is in the best 

position to decide what is needed." Ibid. (citing State v. Winter, 96 N.J. 640, 

647 (1984)). However, it is well settled that "[a]n effective curative instruction

needs to be 'firm, clear, and accomplished without delay.'" State v. Prall, 231 

N.J. 567, 586 (2018) (quoting State v. Vallejo, 198 N.J. 122, 134 (2009)).

Applying these standards, we are satisfied that none of the prosecutor's 

comments deprived defendant of a fair trial. The prosecutor's references to "red 

herrings" were brief and defense counsel did not object to them. Moreover, 

these comments were an appropriate attempt to point out "that the defense's 

presentation was imbalanced or incomplete." Patterson, 435 N.J. Super. at 508. 

In any event, the judge addressed any possible prejudice with his prompt 

curative instruction.

The prosecutor did misspeak when he stated that the evidence presented 

concerning defendant's intent to distribute the Ecstasy pills was "undisputed." 

Again, however, the judge immediately sustained defense counsel's objection 

and advised the jury to disregard that comment. Similarly, when the judge 

believed that the prosecutor had incorrectly told the jury that Castillo could not 

be punished if he failed to tell the truth at trial, he again gave a strong curative 

instruction to the jury.
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In his brief, defendant argues that the judge's curative instructions were 

"too specific" because he told the jury exactly what remarks they were to 

disregard, thus repeating what the prosecutor had said in his summation. This 

argument lacks merit. 

Our Supreme "Court has consistently stressed the importance of 

immediacy and specificity when trial judges provide curative instructions to 

alleviate potential prejudice to a defendant. . . ." Vallejo, 198 N.J. at 135 

(citations omitted). There is a strong presumption that juries follow a judge's 

instructions. State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019).

Here, the judge's instructions were firm, clear, and accomplished without 

delay. The judge promptly and properly informed the jury of exactly what they 

were to disregard and reminded them they were the fact-finders and that 

statements made by counsel in their closing arguments were not evidence. 

Therefore, we reject defendant's contentions on this point.

III.

In Point II, defendant argues for the first time that the judge erred by 

failing to instruct the jury that defendant's mere presence at the post office was 

insufficient by itself to prove that he constructively possessed the Ecstasy pills. 

Again, we disagree.
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It is well settled that "[a]ppropriate and proper charges are essential for a 

fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) 

(internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613 

(2004)). Jury instructions must give 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." Id. at 159 (quoting State v. Green, 86 N.J. 

281, 287-88 (1981)).

"[I]n reviewing any claim of error relating to a jury charge, the 'charge 

must be read as a whole in determining whether there was any error. . . .'" State 

v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div. 2016) (quoting State v. 

Torres, 183 N.J. 554, 564 (2005)). If a defendant does not object to the jury 

charge at the time it was given, "there is a presumption that the charge was not 

error and was unlikely to prejudice the defendant's case." State v. Montalvo, 

229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)). 

In addition, if the defendant does not object to the jury charge, the plain error 

standard is applied and the defendant must demonstrate that any "legal 

impropriety in the charge prejudicially affect[ed] the substantial rights of the 

defendant" and was "sufficiently grievous . . . to convince the [reviewing] court 
13 A-3817-17T2

that of itself the error possessed a clear capacity to bring about an unjust result." 

Id. at 321 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

Applying these principles, we conclude that the trial judge's instruction 

on constructive possession was clearly not erroneous when viewed as a whole. 

The judge instructed the jury that possession could be actual or constructive, and 

either sole or joint. In this portion of the charge, the judge stated:

Possession means a conscious, knowing 

possession, either actual or constructive. A person is in 

actual possession of an item when he first knows what 

it is, that is, he has knowledge of its character and 

second, knowingly has it on [his] person at a given 

time.

Possession may be constructive instead of actual. 

As I just stated, a person who with knowledge of its 

character knowingly has direct physical control over an 

item in a given time is in actual possession of it. 

Constructive possession means possession in which the 

possessor does not physically have the item on his or 

her person but is aware that the item is present and is 

able to and has the intention to exercise control over it.

So, someone who has knowledge of the character 

of an item and knowingly has both the power and the 

intention at a given time to exercise control over it, 

either directly or through another person or persons is 

then in constructive possession of that item.

Possession may be sole or joint. If one person 

alone has actual or constructive possession of an item, 

possession is sole. If two or more persons share actual 
14 A-3817-17T2

or constructive knowing possession of an item, 

possession is joint.

Shortly after instructing the jury on the elements of possession, the judge 

also instructed the jurors on "mere presence," stating:

Mere presence at or near the scene, does not make 

one a participant in the crime nor does the failure of a 

spectator to interfere make him a participant in the 

crime. It is, however, a circumstance to be considered 

with the other evidence in determining whether he was 

present as an accomplice. Presence is not in itself 

conclusive evidence of that fact.

Whether presence—whether presence has any 

probative value depends upon the total circumstances. 

To constitute guilt, there must exist a community of 

purpose and actual participation in the crime 

committed. While mere presence at the scene of the 

perpetration of a crime does not render a person a 

participant in it, proof that one is present at the scene 

of the commission of the crime without disapproving or 

opposing it is evidence from which, in connection with 

other circumstances, it is possible for the jury to infer 

that he assented thereto, lent his countenance and 

approval and was thereby aiding the same. It depends 

upon the totality of the circumstances as those—it 

depends upon the totality of the circumstances as those 

circumstances appear from the evidence.

Thus, contrary to defendant's newly minted contention, the judge carefully 

instructed the jury on the concept of mere presence in the context of the specific 

charge at issue at the trial, that is, whether defendant possessed the Ecstasy pills 
15 A-3817-17T2

with the intent to distribute them.2 Defendant did not object to the jury charge 

at trial, which lends support to the "presumption that the charge was not error" 

and did not prejudice his case. Montalvo, 229 N.J. at 320 (quoting Singleton, 

211 N.J. at 182). Therefore, defendant's contention lacks merit.

Affirmed.

2

 As the parties point out in their briefs, the model jury charge on "possession" 

was amended after defendant's trial to include a mere presence instruction to be 

used when appropriate. Model Jury Charges (Criminal), "Possession (N.J.S.A. 

2C:2-1)" (rev. Jun. 11, 2018). Both parties agree that the trial "court could not 

have been expected to provide the jury with an instruction that had not yet been 

officially incorporated into the Model Charge. . . ." Having reviewed the new 

model charge, however, we are satisfied that taken as a whole, the judge's 

instruction to the jury in this case covered all the information set forth in the 

revised charge.