The majority concluded with the following, in relevant part: More importantly, even the question that the dissent frames incorporates the issue whether any error regarding the verdict sheet was harmless; a contention raised by the State before the Appellate Division and this Court. The State had no obligation to file a cross-petition to argue harmless error before this Court, as the dissent contends that it did. Post at ___ (slip op. at 5). Moreover, in its brief before the Appellate Division, and again in the brief that it submitted to this Court, the State pointed out that the victims in the February 28, 2011 incident in Cherry Hill were not “release[d] . . . unharmed” when defendant left their home. Our dissenting colleague’s claim that the State waived its argument — a claim that not even defendant made in this case — is unsupported by the record.
Finally, our dissenting colleague contends that by considering whether there was a rational basis to convict defendant of second-degree kidnapping as part of our harmless error analysis in this appeal, we have somehow encroached upon the jury’s province as factfinder. Post at ___ (slip op. at 6). Appellate courts properly consider whether the evidence presented at trial provides a rational basis for a conviction on a given charge, either in the context of harmless error, see State v. Coyle (1990), or in the setting of a dispute as to whether a trial court should have instructed the jury, at the defendant’s request, as to a lesser-included offense or other issues, see State v. Crisantos (1986); State v. Messino (App. Div. 2005); State v. Bryant, (App. Div. 1996). Nothing in that inquiry — a legal determination — constitutes an encroachment upon the jury’s exclusive province as the factfinder. To the contrary, that analysis is central to the question whether an error is “clearly capable of producing an unjust result.” R. 2:10-2.
The record strongly supports the conclusion that the jury understood the elements of first-degree kidnapping and concluded that the State met its burden to prove those elements. The court’s instruction on second-degree kidnapping only further underscored the distinction between the two offenses. The evidence did not provide a rational basis for the jury to conclude that defendant “released . . . unharmed” the victims of the kidnapping on February 28, 2011 in Cherry Hill, because those victims were not released; they were left bound. To conclude otherwise ignores the plain language of the statute. The error in the verdict sheet was harmless.
Accordingly, we hold that the omission in the verdict sheet of questions regarding second-degree kidnapping did not constitute plain error. We concur with the Appellate Division’s judgment affirming defendant’s conviction of three counts of first-degree kidnapping.
Justice Patterson spends an inordinate amount of time critiquing the dissent’s analysis. A pro-police v. pro-accused rivalry may be developing between her and Justice Albin.
