The Appellate Division continued in relevant part: We also reject the State’s argument a physician has a common law duty for the care of his patients sufficient to satisfy the legal duty element of second-degree endangering the welfare of a child. See Roe v. Wade, (1973) (discussing the common law duty of a physician to care for his or her patients rooted in the ancient Hippocratic Oath). As was the case with the BME regulation, incorporating a common law duty as an element of a second-degree offense under N.J.S.A. 2C:24-4(a)(1) would create an intolerable ambiguity and extend the statute beyond its intended scope. In addition, when the Legislature intended to include an actor’s professional status as an element of a crime, it has done so explicitly. See N.J.S.A. 2C:14-2(c)(2) (defining second-degree sexual assault as an act of sexual penetration with a victim “on probation or parole” or “detained in a hospital, prison or other institution” if “the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status . . . .”).
Pursuant to Rule 3:7-4, the court may amend the indictment . . . to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits.
An argument against allowing the Court to amend the indictment under the circumstances is that it does not encourage the State to put together a presentation that is consistent with the law. As it stands, the State is incentivized to propose inaccurate charges with the understanding that dismissal of the indictment is not a remedy. An argument that the Court accepted in favor of allowing the amendment is that it contributes to the efficient administration of justice to the extent that the grand jury did approve the lesser charge by implication.
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