14-1-3422 State v. Montalvo, N.J. Sup. Ct. (Fernandez-Vina, J.) (31 pp.) The right to possess a weapon in one's own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only “spontaneously.” Defendant had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the trial court's instructions did not convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of producing an unjust result in this matter, they constitute plain error.

14-2-3441 State v. McInerney, N.J. Super. App. Div. (Alvarez, P.J.A.D.) (14 pp.) A defendant who elects not to testify at a retrial cannot, by virtue of the exercise of his Fifth Amendment privilege, make himself an unavailable witness. See N.J.R.E. 804(a)(1). Therefore, the testimony from the prior proceeding is not admissible under N.J.R.E. 804(b)(1). He cannot render himself unavailable at a second proceeding while seeking to benefit from the admission of his testimony from the first. (Approved for Publication)

14-2-3454 State v. Majewski, N.J. Super. App. Div., (Messano, P.J.A.D.) (19 pp.) The grand jury indicted defendant in a single count charging her with aggravated assault by throwing a bodily fluid, N.J.S.A. 2C:12-13, which provides, “A person who throws a bodily fluid at a . . . law enforcement officer while in the performance of his duties or otherwise purposely subjects such employee to contact with a bodily fluid commits an aggravated assault. If the victim suffers bodily injury, this shall be a crime of the third degree. Otherwise, this shall be a crime of the fourth degree.” The state alleged defendant spat at another inmate, and it landed on a corrections officer. Defendant moved to dismiss the indictment, arguing the prosecutor failed to charge the grand jury regarding the statute's requisite mental state and failed to present clearly exculpatory evidence that negated her guilt. State v. Hogan, 144 N.J. 216, 237 (1996). This evidence included statements of inmates and the disciplinary report of the investigative corrections officer, which confirmed that defendant intended to spit at a fellow inmate, not the officer. The judge denied the motion to dismiss, concluding the evidence did not meet the standard enunciated in Hogan, but he did not resolve what mental state was required under the statute or whether the prosecutor's instructions were appropriate. Defendant thereafter pleaded guilty. The court concluded the state must prove that defendant acted purposely, and that the doctrine of transferred intent, N.J.S.A. 2C:2-3(d), cannot elevate the act of spitting, even if an offense under the Criminal Code, into an aggravated assault, unless the officer was the intended target. See, e.g., State ex rel S.B., 333 N.J. Super. 236, 244-45 (App. Div. 2000). Defendant's motion to dismiss should have been granted because the prosecutor failed to inform the grand jurors of the requisite culpable mental state. (Approved for Publication)