Justice Patterson continued in relevant part: As in Galicia, there is no basis in this case for a finding of plain error. As it deliberated, the jury had the trial court’s precise and accurate explanation of the first-degree and second-degree kidnapping standards — not only as verbally delivered in court, but in written form in the jury room. Those instructions clearly directed the jury not to consider the lesser-included offenses of the charged count of first-degree kidnapping — second-degree kidnapping, criminal restraint, and false imprisonment — unless it found defendant not guilty of the first-degree offense. The jury clearly understood that it could acquit defendant of first-degree offenses and consider lesser-included offenses; indeed, with respect to eight other first-degree kidnapping counts, it either convicted defendant of lesser-included offenses or acquitted him entirely. As to the kidnapping charges involving the father and his two daughters in the February 28, 2011 incident in Cherry Hill, however, the jury decided that the State had met its burden to prove each element of the first-degree offense.
Just as the evidence in Galicia did not provide a rational basis for passion/provocation manslaughter, the evidence in this case likewise did not provide a rational basis to convict defendant of second-degree kidnapping. Such a verdict would require the jury to conclude that the State failed to meet its burden to prove that defendant did not “release” the victims “unharmed and in a safe place” prior to his apprehension.
The term “release” denotes “the action of freeing or the fact of being freed from restraint or confinement.” Black’s Law Dictionary 1408 (10th ed. 2014). Consistent with N.J.S.A. 2C:13-1(c)’s plain meaning, we acknowledged that a defendant who forced a taxi driver to drive a substantial distance at gunpoint, after which he departed the taxi, leaving the driver uninjured, had released that victim “unharmed and in a safe place,” and was properly charged with second-degree kidnapping rather than first-degree kidnapping. State v. Jackson (2012). Similarly, the Appellate Division noted that second-degree kidnapping was the appropriate charge for a defendant who had handcuffed and confined a victim in an undisclosed location for approximately six hours but then removed her handcuffs and permitted her to leave, such that she was “released unharmed and in a safe place.” State v. Marchand (App. Div. 1988).
The distinction between first and second degree kidnapping is a logical one. Someone who leaves a victim unharmed and in a safe place should not be punished as severely as someone who harms them and/or leaves them in danger.
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