The Moorer Court continued:
Thus, a party seeking a lesser-included offense charge must show “(1) that the requested charge satisfies the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) that there is a rational basis in the evidence to support a charge on that included offense.”
N.J.S.A. 2C:35-10(c) is not a lesser-included offense of N.J.S.A. 2C:35-10(a) under any of the subsections of N.J.S.A. 2C:1-8(d). Subsection (d)(1) does not apply because N.J.S.A. 2C:35-10(c) requires both that the defendant knowingly possessed a CDS in violation of N.J.S.A. 2C:35-10(a) and that the defendant failed to deliver that substance to a law enforcement officer. Thus, N.J.S.A. 2C:35-10(c) requires a second element not required by N.J.S.A. 2C:35-10(a). Subsection (d)(2) is not applicable because N.J.S.A. 2C:35-10(c) involves neither conspiracy nor attempt. Subsection (d)(3) does not apply because N.J.S.A. 2C:35-10(c) requires a violation of N.J.S.A. 2C:35-10(a) and thus cannot be said to be satisfied by a lesser injury, risk, or culpability.
This is an excellent example of the analysis that should be performed in determining whether an offense is a lesser-included offense.
The Court continued:
Indeed, the legislative history of N.J.S.A. 2C:35-10(c) shows it was enacted to give prosecutors “a method of facilitating ‘speedy trials’ by downgrading cases involving possession of CDS” under N.J.S.A. 2C:35-10(a). In Patton, our Supreme Court reviewed N.J.S.A. 2C:35-10(c)’s legislative history. After the 1987 enactment of the Comprehensive Drug Reform Act of 1986, there was “a dramatic increase in the number of drug arrests” which “exacerbated the pressure on the criminal courts. The Supreme Court Task Force on Speedy Trial acknowledged that the caseload of the criminal-justice system could be reduced significantly by prosecutors exercising their discretion to refer matters to municipal court for prosecution as disorderly-persons offenses.”
The Task Force recommended the Legislature enact a statute “creating appropriate disorderly persons offenses for possession of small quantities of certain drugs . . . to permit the use of prosecutorial discretion in the charging and screening process.” In 1988, the Legislature “implemented that recommendation” by amending N.J.S.A. 2C:35-10 to add subsection (c) for “use only as a mechanism to downgrade simple possession, an indictable offense, to a disorderly-persons offense.”
We faced a similar situation in State v. N.A. There, we held N.J.S.A. 9:6-3 was not a lesser-included offense of N.J.S.A. 2C:24-4(a). The Legislature enacted N.J.S.A. 2C:24-4(a) to make it a second-degree offense for a person having care of a child to “make the child an abused or neglected child as defined in” N.J.S.A. 9:6-3. N.J.S.A. 2C:24-4(a). N.J.S.A. 9:6-3 already made it a fourth-degree crime for such a person to abuse or neglect a child. In enacting N.J.S.A. 2C:24-4(a), the Legislature’s “‘intent was to incorporate the crime now defined in N.J.S.A. 9:6-3 without substantial change except for the penalty provisions.” We found “a legislative intent that both statutes are to be preserved perhaps to provide prosecutors the option of charging a lesser offense under appropriate circumstances.”
“Under these unique circumstances,” we concluded in N.A. that N.J.S.A. 9:6-3 “should not have been charged as a lesser included offense” of N.J.S.A. 2C:24-4(a). “Submission of both offenses would involve the jury in the act of imposition of sentence.” We stressed that generally “a jury’s consideration of the evidence is confined to what, if any, offenses have been committed by the defendant rather than the penalty which may or must be imposed. The rationale for this limitation is that sentencing information fails to help the jury in deciding the issue of guilt, distracts the jury by confusing the issues to be decided, and invites a compromise verdict. Submission of both offenses would transform the traditional function of the jury, a consequence which should not occur lightly. Rather, we elect to defer to the discretion reposed in the prosecutor regarding the nature and extent of the charges to be presented to the Grand Jury.”
The Court’s election presupposes that a given prosecutor can and should be given more power than a group of twelve jurors selected by a judge, defense attorney, and prosecutor.