The Supreme Court continued in relevant part: The Appellate Division’s proposed rule also aimed to ensure that the relevant standard would be applied initially by the trial court, not “an appellate court reviewing a cold record.” But as the Appellate Division correctly noted, the rational-basis standard applies only when a defendant requests a passion/provocation manslaughter instruction during the charge conference. Id. at 292. Therefore, that standard is necessarily “applied in the first instance by the trial court before a verdict is rendered,” see id. at 302, to adjudicate defendant’s request. See Crisantos (noting that, when a defendant requests a lesser-included offense charge, the trial court must “examine the record thoroughly to determine if the rational-basis standard has been satisfied”).
The only practical change the Appellate Division’s new procedural rule would engender is to require trial courts to apply the “clearly indicated” standard in the first instance during the charge conference whenever the defendant does not request a passion/provocation charge or opposes it. We do not consider such a modification necessary.
The “clearly indicated” standard was specifically created by appellate courts and is more appropriately a tool of post-verdict and appellate review. As the Appellate Division noted, when the defendant does not request the instruction, the trial court has no obligation “to meticulously . . . sift through the entire record” to decide whether a lesser-included offense should be charged to the jury. Instead, only “if the evidence is jumping off the page” of the trial court record must the instruction be given sua sponte.
A fair response to the Court’s last point is that Superior Court trial judges have substantial resources at their disposal. It is not unreasonable to suggest that a law clerk or clerks could and should review trial transcripts. Given the relative rarity of superior court criminal trials, such a review would provide the law clerks with invaluable experience and contribute to the administration of justice.
