Lesser Included Offenses: Part 3

The Moorer Court continued:

In N.A., we followed the lead of State v. D.V. which ruled that a “prosecutor may select between a crime of the second degree under N.J.S.A. 2C:24-4(a) and a fourth degree offense under N.J.S.A. 9:6-3″ and that “the selection of the charge rests in the sound discretion of the prosecutor.” This in turn reflected the “well ‘settled rule’ that when ‘an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.”

Note that it would be exceedingly difficult to prove that the Government is discriminating against a class of defendants. It would require a review of every case in which a prosecutor prosecuted the crime of endangering the welfare of children, along with each charging decision and the demographics of those charged, assuming that information is even available. The only conceivable way that such discrimination could be proven is if a prosecutor chose to reveal their own unlawful acts or the unlawful acts of a fellow prosecutor.

The Moorer Court continued:

In enacting N.J.S.A. 2C:35-10(c), the Legislature similarly intended “‘to incorporate the crime now defined in N.J.S.A. 2C:35-10(a) without substantial change except for the penalty provisions'” in order “to provide prosecutors the option of charging a lesser offense under appropriate circumstances.” For similar reasons, N.J.S.A. 2C:35-10(c) should not be charged as a lesser-included offense because “submission of both offenses would involve the jury in the act of imposition of sentence.”

In addition, “‘to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.” There could never be a rational basis for a jury to convict a defendant of violating N.J.S.A. 2C:35-10(c) while acquitting him of violating N.J.S.A. 2C:35-10(a), as a defendant must be “in violation of subsection a.” to violate N.J.S.A. 2C:35-10(c). Absent such a “rational basis,” it is inappropriate to instruct on N.J.S.A. 2C:35-10(c) as a lesser-included offense of N.J.S.A. 2C:35-10(a).

For the same reasons, the trial court was not required to instruct the jury on N.J.S.A. 2C:35-10(c) as a related offense. “Related offenses are those that ‘share a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment. A court may instruct on a related offense when ‘the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense.'” Here, there was no rational basis for the jury to convict defendant of failure to make a lawful disposition but acquit him of possession of a CDS. Absent such a rational basis, giving an instruction on a related offense is improper because a trial court cannot charge a jury on any offense requested by the defendant or suggested by the evidence. A trial court should not “scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty. The prosecutor has the primary charging responsibility.”