Fred Sisto | Criminal Attorney | Ocean and Monmouth County

Call Us Today
732-898-3232

  • Home
  • Criminal Defense Services
    ▼
    • Drug Crimes
      ▼
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      ▼
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      ▼
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      ▼
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    ▼
    • Testimonials
    • Defending Cases In
      ▼
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    ▼
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
  • Home
  • Criminal Defense Services
    • Drug Crimes
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    • Testimonials
    • Defending Cases In
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
Home >> Failure to Request a Lesser-Included Jury Charge (Part 1)

August 15, 2018 by Fred Sisto

Failure to Request a Lesser-Included Jury Charge (Part 1)

On April 30, 2018, Justice Timpone wrote for a unanimous New Jersey Supreme Court in the Essex County case of State v. Allen Alexander. The principal issue before the Court was whether the trial court was obligated to charge the jury with aggravated assault as a lesser-included offense of robbery when the defendant made no such request at trial.

In relevant part the Court held as follows. As a preliminary matter, we review the appropriate standard for assessing a trial court’s obligation to give unrequested instructions on lesser-included offenses. The appellate panel noted the clearly indicated standard applies to cases of unrequested jury instructions but improperly applied the rational basis test in its analysis. The panel ultimately concluded, after reviewing the trial evidence, that “there is a rational basis in the evidence for the jury to acquit defendant of robbery and conspiracy to commit robbery, as well as to convict defendant of aggravated assault.”

Yet, just because a charge meets the rational basis test does not mean it meets the clearly indicated standard. As we explained earlier, when a defendant fails to request a lesser-included charge or object to its omission at trial, the need for that charge is subject to a higher threshold. In that scenario, unless that need is clearly indicated from the evidence, we will not find plain error.

The facts of this case call for review under the higher, clearly indicated standard. Defendant had several opportunities to request an aggravated assault charge before the trial court but failed to do so. At a pretrial conference, the parties and the trial court discussed the jury instructions to be charged, which did not include aggravated assault. Defense counsel noted his objection only to the court’s accomplice liability charge. Similarly, at a conference before closing arguments, the trial court specifically asked counsel if they had any additional requests after it read the charges to counsel on the record. Defense counsel again failed to request an aggravated assault charge or to object to its omission at a charge conference before closing arguments. Defense counsel likewise did not submit a proposed aggravated assault instruction after closing arguments and before the court charged the jury.

The decision by defense counsel not to request an instruction on the lesser-included aggravated assault charge does not mean that s/he was ineffective. The related question that can only be answered at a post-conviction relief proceeding, as opposed to on direct appeal, is whether counsel’s decision was based on trial strategy. A possible strategic explanation is that s/he was concerned that the jury would reach a compromise verdict instead of an acquittal if they were given too many charges to consider.

Filed Under: Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Testimonials

Fred is a stickler for detail and communicates with clients very, very well. He is smart and astute. I would recommend him unconditionally.

Tom O   

I would highly recommend Mr. Sisto. He is very insightful and proficient, yet still down to Earth. Fred is great at communicating and breaking down the facts. But most importantly, he excels at getting results.

Bill K   

Thanks to Fred I have no criminal record whatsoever.

Luke A   

Great!!! , got my case handled in the exact manner that I was told and would recommend to everyone else in need of legal representation.

Raumelis R   
See More Testimonials

Recent Posts

  • Permits to Carry and Sensitive Places (Part 35)
  • Permits to Carry and Sensitive Places (Part 34)
  • Permits to Carry and Sensitive Places (Part 33)
  • Permits to Carry and Sensitive Places (Part 32)
  • Permits to Carry and Sensitive Places (Part 31)
  • Permits to Carry and Sensitive Places (Part 30)
  • Permits to Carry and Sensitive Places (Part 29)
  • Permits to Carry and Sensitive Places (Part 28)

Recent Speaking Engagement

Site Disclaimer

Attorney Referral Fees

Frederick P Sisto has earned Lawyer Legion's recognition for Community Leadership
 
Top Criminal Defense Attorney in Brick

Law Office of Frederick P. Sisto

Point Pleasant Office*:
302 Hawthorne Ave, Suite 1
Point Pleasant Beach, NJ 08742

Brick Township Office*:
223 Drum Point Road, Suite 1
Brick Township, NJ 08723

Sea Girt Office*:
2150 NJ-35,
Suite 225
Sea Girt, NJ 08750

Phone: 732-898-3232
Fax: 201-508-3393
*Office visits by appointment only.

Representing clients throughout all court jurisdictions of New Jersey.

WITH THE EXCEPTION OF THE CRIMINAL TRIAL ATTORNEY CERTIFICATION, NO ASPECT OF THIS ADVERTISEMENT HAS BEEN APPROVED BY THE SUPREME COURT OF NEW JERSEY

en English
en Englishes Spanish