Lesser Included Offenses: Part 1

In State v. Moorer, Docket No. a-2922-14 (App. Div. 2016), a Salem County case decided on December 29, 2016, the Appellate Division was called upon to interpret N.J.S.A. 2C:1-8, concerning permissible methods of prosecution when conduct constitutes more than one offense. The issue was whether a defendant on trial for possession of CDS was entitled to have the jury charged with failure to make a lawful disposition of CDS under N.J.S. 2C:35-10c as a lesser included offense of possession under N.J.S. 2C:35-10a.

In relevant part, the three judge Appellate panel held: To determine if failure to make a lawful disposition is a lesser-included offense of possession of a CDS, we look to N.J.S.A. 2C:1-8(d), which “governs lesser-included offenses.” A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

In addition, N.J.S.A. 2C:1-8(e) provides: “The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.” N.J.S.A. 2C:1-8(e) has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.

Prosecutors will no doubt benefit from this language and would be wise to argue it whenever defense counsel requests that a lesser-included offense be charged. A good counter argument to the prosecutor’s position is that even if there is not a rational basis to acquit, jury nullification is a permissible goal for the defense while it is not for the prosecution. That is to say that the defense is permitted to appeal to a jury’s sense of justice and ask for an acquittal in those rare cases where the defendant is technically guilty of the offense but a conviction under the circumstances would offend the jury’s collective sense of justice. Prosecutors, on the other hand, are never permitted to ask a jury to convict even though a defendant has not been proven guilty beyond a reasonable doubt.