Justice Patterson continued in relevant part: Our concurring and dissenting colleague asserts two arguments in support of the contention that the error in the verdict sheet warrants reversal of defendant’s first-degree kidnapping convictions. First, our dissenting colleague surmises that the jury’s generic question to the trial court — “if applicable, how do we denote second degree on a charge in the verdict book?” — related to the two first-degree charges for which the jury convicted defendant, not to the other sixteen first-degree charges that the jury considered. Post at ___ (slip op. at 3). Second, our dissenting colleague argues that, in our harmless error analysis, we have considered an argument that was not properly raised by the State and have displaced the jury in the role of factfinder. Post at ___ (slip op. at 6). Neither contention has merit.
When it asked the trial court about how to “denote” a second-degree charge, the jury had before it a verdict sheet requiring it to answer 115 questions, 62 of which related to the nineteen first-degree charges pending against defendant. The verdict sheet properly focused on the elements of each offense, and did not use the terms “first-degree” or “second-degree” to categorize the various charges. The jury’s question could have related to any of the first-degree charges — the five on which defendant was convicted, the twelve on which defendant was acquitted, or the one on which defendant was convicted of a lesser-included offense — or to any of the twenty-three second-degree charges. Alternatively, the jury’s question could have pertained to no charge in particular. There is simply no basis for any speculation — let alone our dissenting colleague’s certainty — as to the import of the jury’s question.
We also respectfully disagree with our dissenting colleague’s suggestion that, in our harmless error analysis, we have improperly considered a question that was not before the Court. The dissent contends that we granted certification to consider whether “the verdict sheet and the trial court’s erroneous response to the jury’s question precluded the jury from convicting defendant of second-degree kidnapping.” Post at ___ (slip op. at 5). That quotation is not from the Court’s grant of certification, but from defendant’s brief to the Appellate Division. As framed by the Court, the grant of certification generally related to “the verdict sheet’s omission of the charge of second-degree kidnapping” and the imposition of consecutive sentences. 234 N.J. 315. There is no support for the dissent’s contention that our grant of certification was a “shorthand” for the defendant’s argument. Post at ___ (slip op. at 5).
In holding that “there is no basis for any speculation”, Justice Patterson is at the same time speculating as to what the jury “could have” been doing. Justice Albin, the author of the dissent, has been the lone dissent in favor of the accused in many cases.
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