SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3978-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY HYACINTHE, a/k/a

GREGORY HYACINTH,

Defendant-Appellant.

___________________________

Argued December 18, 2019 – Decided April 30, 2020

Before Judges Whipple, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 16-07-0482.

Zachary Gilbert Markarian, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Zachary Gilbert 

Markarian, of counsel and on the briefs).

Milton Samuel Leibowitz, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Lyndsay V. Ruotolo, Acting Union 

County Prosecutor, attorney; Milton Samuel Leibowitz, 

of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-3978-17T3

PER CURIAM

On July 19, 2016, defendant was charged in a Union County indictment 

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

third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) 

(count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d) (count three); and third-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:29-4(d) (count four). The charges stemmed from a 

physical altercation during which defendant allegedly struck Jared1 Milon with 

a hammer when Milon intervened in a fight between defendant's girlfriend, 

Khylah Brown, and Milon's girlfriend, Sandina Depas. Following a jury trial, 

defendant was convicted of simple assault, as a lesser included offense of count 

one, and unlawful possession of a weapon, namely, a hammer, as charged in 

count three. He was acquitted of counts two and four. In a January 18, 2018 

judgment of conviction, he was sentenced to an aggregate term of two years' 

probation. 

On appeal, defendant raises the following point for our consideration:

BECAUSE [DEFENDANT'S] AND BROWN'S 

TESTIMONY PROVIDED SOME EVIDENCE THAT 

[DEFENDANT] ACTED IN SELF-DEFENSE 

DURING THE FIGHT WITH MILON, THE TRIAL 

 

1

 Alternate spellings of Jared appear in the record.
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COURT ERRED IN REFUSING TO INSTRUCT THE 

JURY REGARDING SELF-DEFENSE AND IN 

REFUSING TO CHARGE MUTUAL FIGHTING, 

REQUIRING REVERSAL.

. . . .

[A]. THE COURT IMPROPERLY 

REFUSED TO INSTRUCT THE JURY 

THAT SPONTANEOUSLY ARMING 

ONESELF WITH A HAMMER IN SELFDEFENSE CONSTITUTES LAWFUL 

POS[S]ESSION.

[B]. THE COURT IMPROPERLY 

REFUSED TO INSTRUCT THE JURY 

REGARDING SELF-DEFENSE AS TO 

THE ASSAULT CHARGES.

[C]. THE COURT IMPROPERLY 

REFUSED TO INSTRUCT THE JURY AS 

TO THE LESSER-INCLUDED CHARGE 

OF MUTUAL FIGHTING.

Having considered these arguments in light of the record and the applicable legal 

principles, we are constrained to reverse defendant's convictions and remand for 

retrial on both counts.

The physical altercation from which the charges arose occurred on March 

26, 2016, and involved defendant, Brown, Milon, and Depas, all of whom 

testified at the trial. For the State, Depas testified that at approximately 11:30 

p.m., there was a knock on her bedroom door. When she opened the door, she 
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was confronted by Brown and defendant. Brown "asked [her] if [she] was 

sleeping with [defendant]," to which Depas responded that "she should ask 

[defendant]" that question. After Brown threatened to fight Depas, Depas 

refused to fight and closed her bedroom door. 

When Brown knocked again, Depas opened the door and a heated verbal 

exchange ensued, which escalated into a physical altercation between the two 

women, with Brown throwing the first punch. Once the two started fighting, 

Milon, who had been asleep on Depas's bed, "got up" and tried to separate them. 

At that point, defendant told Milon not to touch "[his] girl[,]" punched Depas, 

and started fighting Milon. According to Depas, at first, defendant punched 

Milon with his fists, "and then . . . defendant pulled out a hammer from his 

pocket" and struck Milon with the hammer. 

Milon testified for the State and corroborated Depas's account. According 

to Milon, when Brown "barged" into the bedroom to fight, he "put [his] hands 

up . . . to separate them." Defendant objected to Milon touching Brown and 

punched Depas in retaliation. When Milon asked why he had hit Depas, 

defendant lunged at him, first "hitting [him] with his fist" and then "hit[ting] 

[him] in the head with [a] hammer." According to Milon, when defendant struck 

him with the hammer, he was "kneel[ing] down on the floor on [his] knees" 
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while defendant was "crouched over top of [him]." Milon testified that he tried 

"to defend [himself]" but was unsuccessful in blocking the blows. Milon 

described the hammer as "a ten inch [metal] house hammer" with a "[b]rown 

handle." However, he did not see where the hammer came from. 

Eventually, defendant and Brown left the house. At that point, Depas 

observed "a lot of blood all over [Milon's] shoulder," "neck," and "back." She 

rushed him to the hospital where he was treated with "anti-inflammatory" and 

"pain medication[s]" for "a broken nose," multiple abrasions on various parts of 

his body, "a large abrasion on his skull," and a "severe headache." Later, Depas 

reported the incident to the police and both she and Milon gave statements. 

Brown testified for defendant and gave a different account of what 

transpired. According to Brown, Depas approached her on the street in 

Elizabeth at about 9:00 a.m. that morning and claimed "she was having sex with 

[defendant]," an encounter Depas denied. That evening, when Brown 

confronted defendant with the allegation, he denied it and an argument ensued. 

Skeptical of defendant's denial, Brown decided she would clear the matter up by 

having Depas repeat her claim in defendant's presence. 

Depas and Brown lived "around the corner" from each other in Roselle 

and Depas's housemate, Lando Marc, was a mutual friend. Brown and defendant 
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arrived at Depas's house at around 11:30 p.m., after confirming with Marc that 

Depas was at the house. After Marc let them in, Brown knocked on Depas's 

bedroom door. When Depas partially opened the door, Brown demanded that 

Depas repeat her claim about having sex with defendant. Instead, Depas opened 

the door fully to reveal that her boyfriend, Milon, was asleep in the room, yelled 

at defendant to "[g]et [his] bitch," and slammed the door shut. 

Brown knocked on Depas's bedroom door again. This time, when Depas 

opened the door, the two engaged in a heated verbal exchange which soon 

escalated into a physical altercation, with Depas making the first move. As the 

two women pushed and punched each other, Milon, who had awakened, 

intervened and punched Brown. At that point, defendant and Milon started 

"wrestling" on the ground and throwing punches at each other. Towards the end 

of the fight, both men reached for a hammer that was behind the bedroom door. 

Defendant grabbed the hammer first and "hit [Milon] in the back" with it. 

Eventually, defendant "dropped the hammer" and said "that's enough." At that 

point, he and Brown left the house and "went home." Brown testified that when 

they left, she did not see any injuries on Milon. However, the following day, 

the police arrested defendant. Brown denied that she or defendant brought the 

hammer or any other weapon to Depas's house. 
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Defendant testified on his own behalf and corroborated Brown's account. 

According to defendant, while he and Milon were fighting on the ground, Milon 

reached for a hammer behind the bedroom door but defendant "jumped quicker 

and . . . got [the hammer]" first. After defendant grabbed the hammer, Milon 

tried "to get it out of [his] hand." At that point, defendant "hit [Milon] with [the 

hammer] in his back." Thereafter, Milon "held onto [defendant's] legs" when he 

tried to get up "so [defendant] hit him with [the hammer] again." Defendant 

testified that he grabbed the hammer "[t]o protect [him]self" because he thought 

Milon "was going to hit [him] with it and he could have killed [him]." According 

to defendant, "[he] did [not] hit [Milon] hard," and he did not intend to cause 

him any serious injury. "[He] just wanted to get him off of [him]." Once Milon 

stopped fighting him, defendant dropped the hammer and left the house with 

Brown. Defendant testified that when he left the house, Milon did not have any 

visible injuries and, contrary to Milon's description, the hammer had a black 

handle.

On appeal, defendant argues he "was deprived of his rights to due process 

and a fair trial" because the "judge's instructions regarding the counts for which 

[defendant] was convicted were deficient." Specifically, defendant asserts that 

although the judge agreed to include a self-defense instruction for count four, 
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the judge refused to charge self-defense in connection with counts one and three, 

and mutual fighting as a lesser included offense of simple assault.

"Appropriate and proper charges to a jury are essential for a fair trial." 

State v. Green, 86 N.J. 281, 287 (1981). "The trial court 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.'" 

State v. Baum, 224 N.J. 147, 159 (2016) (quoting Green, 86 N.J. at 287-88). In 

fact, "[i]t is the independent duty of the court to ensure that the jurors receive 

accurate instructions on the law as it pertains to the facts and issues of each case, 

irrespective of the particular language suggested by either party." State v. 

Reddish, 181 N.J. 553, 613 (2004). 

In reviewing a jury charge, "[t]he test to be applied . . . is whether the 

charge as a whole is misleading, or sets forth accurately and fairly the 

controlling principles of law." State v. Jackmon, 305 N.J. Super. 274, 299 (App.

Div. 1997) (quoting State v. Sette, 259 N.J. Super. 156, 190-91 (App. Div.

1992)). "Because proper jury instructions are essential to a fair trial, 'erroneous 

instructions on material points are presumed to' possess the capacity to unfairly 

prejudice the defendant." State v. Bunch, 180 N.J. 534, 541-42 (2004) (quoting 

State v. Nelson, 173 N.J. 417, 446 (2002)); see also State v. Jordan, 147 N.J. 
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409, 422 (1997) (finding "[e]rroneous instructions on matters or issues that are 

material to the jury's deliberation are presumed to be reversible error in criminal 

prosecutions").

Because defendant objected to the omission of the charges, in conducting 

our review, if we find error, we must apply a harmless error analysis. See R.

2:10-2. "Under that standard, there must 'be "some degree of possibility that 

[the error] led to an unjust result. The possibility must be real, one sufficient to 

raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise 

might not have reached."'" Baum, 224 N.J. at 159-60 (alterations in original) 

(quoting State v. Lazo, 209 N.J. 9, 26 (2012)).

First, we address defendant's contention that the judge erred in denying 

his request to charge self-defense in connection with count three, unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d). N.J.S.A. 2C:39-5(a) to (c) "makes 

the possession of certain unlicensed weapons, such as machine guns, handguns, 

rifles, or shotguns, a per se offense . . . regardless of the intent of the possessor 

or circumstances surrounding the possession." State v. Kelly, 118 N.J. 370, 379 

(1990). N.J.S.A. 2C:39-5(d) "prohibits possession of any other weapon 'under 

circumstances not manifestly appropriate for such lawful uses as it may have.'" 

Ibid. (quoting N.J.S.A. 2C:39-5(d)). 
10 A-3978-17T3

In State v. Lee, 96 N.J. 156 (1984) and State v. Harmon, 104 N.J. 189 

(1986), our Supreme Court

define[d] section 5d as proscribing possession of 

weapons regardless of the possessor's intent . . . . [and]

ma[d]e clear that allowing anticipatory self-defense as 

a justification for a section 5d offense [was] 

inconsistent with the "carefully constructed scheme for 

the criminalization of possession of weapons in various 

situations" outlined by the Legislature in N.J.S.A. 

2C:39-3, -4, and -5. 

[Kelly, 118 N.J. at 378 (quoting Lee, 96 N.J. at 160).] 

In Kelly, our Supreme Court observed:

[T]he carefully instructed legislative plan embodied in 

N.J.S.A. 2C:39, together with a review [of] Lee and 

Harmon establishes that 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 to a section 5d offense. In such a case, the 

person would not have possessed the implement to use 

it as a weapon but for its proper purpose. Absent 

possession of the implement as a weapon, a person has 

not committed a section 5d offense.

[118 N.J. at 381.]

"Thus while self-defense may be probative to determining unlawful intent 

to commit a crime, it is only relevant in the context of section 5d offenses when 

a defendant makes spontaneous use of a weapon in response to an immediate 
11 A-3978-17T3

danger." Id. at 385. Stated differently, "extraordinary circumstances that allow 

for . . . self-defense under section 5d" are "those in which a person makes 

spontaneous use of a weapon to repel[] immediate danger." Ibid. (citing 

Harmon, 104 N.J. at 208-09). 

In Kelly, the Court

found that no self-defense instruction was warranted in 

the absence of such spontaneous action during a street 

encounter. In that case, the defendant armed herself 

with a carpet-cutting razor before leaving her home to 

take her child out for a walk. She did so because her 

child's father, who had severely beaten her in the past, 

warned her not to walk past a certain street corner. 

When the defendant passed the corner, her abuser began 

punching her; she, in turn, slashed him repeatedly with 

the razor.

[State v. Montalvo, 229 N.J. 300, 319 (2017) (citing 

Kelly, 118 N.J. at 373-75, 385-87).]

The Kelly Court "held that because the defendant armed herself with the 

razor before leaving her home in anticipation of using it for self-defense, a selfdefense instruction was not required." Montalvo, 229 N.J. at 319 (citing Kelly, 

118 N.J. at 385-87). The Kelly Court "observed, however, that if the defendant 

had 'seized the weapon spontaneously and used it to defend herself against a 

life-threatening attack, then, she would not have possessed the weapon for a 

manifestly inappropriate purpose.'" Ibid. (quoting Kelly, 118 N.J. at 385).
12 A-3978-17T3

Here, although the judge agreed to instruct the jury on self-defense in 

connection with count four, possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:29-4(d), the judge rejected defendant's request to instruct the jury 

on self-defense in connection with count three, unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(d). Moreover, during deliberations, when the jurors 

asked whether they could consider self-defense in connection with count three, 

over defense counsel's objection, the judge responded that self-defense was "not 

a defense to [count three]," and only applied to count four. 

We are persuaded that the judge erred in refusing defendant's request to 

instruct the jury on self-defense in connection with count three. The origin of 

the hammer was hotly disputed, with the State contending defendant armed 

himself with the hammer before arriving at the scene, while the defense asserted 

the hammer was already at the house. On the one hand, while the jurors could 

have convicted defendant on count three if they believed Depas's testimony that 

defendant "pulled out a hammer from his pocket" and struck Milon with the 

hammer, based on defendant's account, corroborated by Brown, defendant 

seized the hammer spontaneously to meet an immediate danger and used it to 

defend himself against a life-threatening attack. 
13 A-3978-17T3

Under defendant's version, he would not have possessed the weapon for a 

manifestly inappropriate purpose. Because defendant's account supported the 

self-defense justification for count three, and because defendant was acquitted 

of count four for which the jury considered the self-defense justification, we are 

convinced that the error was sufficient to raise a reasonable doubt as to whether 

it led the jury to a verdict it otherwise might not have reached.

We now turn to defendant's contention that the judge erred in rejecting his 

request to charge self-defense in connection with the aggravated assault charged 

in count one. "In considering whether to charge the jury on self-defense, a court 

should consider the circumstances that might give rise to that defense, including 

the defendant's and alleged aggressor's conduct, rather than the charges chosen 

by the prosecutor." State v. Rodriguez, 195 N.J. 165, 174 (2008). "The reality 

of the situation facing the defendant governs whether he had a right to engage 

in self-defense," ibid., and "self-defense must be charged if the evidence, viewed 

most favorably to the defendant, would support that justification." State v. 

Gentry, 439 N.J. Super. 57, 63 (App. Div. 2015). Thus, "[a]s long as a selfdefense charge is requested and supported by some evidence in the record, it 

must be given." Rodriguez, 195 N.J. at 174.
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Pursuant to N.J.S.A. 2C:3-4(a), "the use of force upon or toward another 

person 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 such other person on the present occasion." 

[F]or defendant to prevail, the jury need not find 

beyond a reasonable doubt that the defendant's belief 

was honest and reasonable. Rather, if any evidence 

raising the issue of self-defense is adduced, either in the 

State's or the defendant's case, then the jury must be 

instructed that the State is required to prove beyond a 

reasonable doubt that the self-defense claim does not 

accord with the facts; acquittal is required if there

remains a reasonable doubt whether the defendant acted 

in self-defense. 

[State v. Kelly, 97 N.J. 178, 200 (1984).]

Here, defendant's intent in striking Milon with the hammer as well as the 

number and severity of the blows were disputed. The State's witnesses testified 

that the blows resulted in a great deal of blood on Milon's shoulder, neck, and 

back, and were inflicted while Milon cowered on the floor on his knees. In 

contrast, defendant testified that he hit Milon with the hammer twice to protect 

himself from Milon's imminent use of life-threatening force. He denied striking 

Milon hard, and denied causing any visible injuries, an observation Brown

corroborated. 
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In rejecting defendant's request to charge self-defense, the judge stated2

[I]n terms of a test for self[-]defense, it would actually 

have to be for the individual to protect himself from 

some type of equal force. . . . [U]sing a hammer in a 

fist fight . . . is not self[-]defense in the same [vein] that 

using a . . . gun in a fist fight wouldn't be self[-]defense, 

a knife in a fist fight wouldn't be self[-]defense, a bat[] 

in a fist fight wouldn't be self[-]defense and so, a 

hammer in a fist fight wouldn't be self[-]defense, either.

. . . [B]y his own testimony[, defendant] did not 

take the hammer in order to protect himself. He took 

the hammer out of fear, he says, that the other 

individual just might get it, . . . and if he did get it[,] 

. . . he might use it against me.

But, there is . . . no proof of that, either.

Clearly, the judge misstated defendant's testimony. It was for the jury to 

determine whether defendant reasonably believed that the use of force, striking 

Milon with the hammer twice, was necessary to protect himself against the use 

of unlawful force by Milon. It was the judge's responsibility to determine 

whether there was some evidence to support the jury charge. Viewing the 

evidence in the light most favorable to the defense, defendant's testimony 

provided some evidence from which the jury could have concluded that he acted 

 

2

 Initially, the judge noted that the application asserting self-defense "was . . . 

made out of time." However, the judge considered the application substantively 

as permitted under Rule 3:12-1, authorizing the court to "take such action as the 

interest of justice requires." 
16 A-3978-17T3

in justifiable self-defense. Indeed, based on defendant's testimony, it was Milon 

who brought a hammer to a fist fight. 

The question of whether defendant's use of force was disproportionate 

under the circumstances was for the jury to decide, not the judge. If the State 

failed to prove beyond a reasonable doubt that defendant could not have 

reasonably believed in the need to use force, defendant could have been 

exonerated from criminal liability and acquitted of count one. Thus, we are 

satisfied that the error was sufficient to raise a reasonable doubt as to whether it 

led the jury to a verdict it otherwise might not have reached. Our conclusion is 

compelled by the fact that the jury acquitted defendant of count four, the only 

charge for which the judge provided the self-defense instruction. Moreover, the 

fact that the judge charged self-defense for count four reinforces defendant's 

contention that self-defense was supported by some evidence in the record. 

Because we conclude that the judge erred in failing to charge self-defense 

as requested by defendant, we reverse his convictions for simple assault and 

unlawful possession of a weapon, and remand for a new trial. Based on our 

decision, we need not address defendant's contention that the judge also erred in 

rejecting his request to charge the petty disorderly persons offense of mutual 

fighting as a lesser-included offense of simple assault.
17 A-3978-17T3

Reversed and remanded for a new trial. We do not retain jurisdiction.