DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (TOWN) COUNTIES: THE RIGHT TO AN INDICTMENT, THE LAW OF CONSPIRACY AND THE LESSER INCLUDED OFFENSE CONCEPT

Before anyone can be convicted of a crime in New Jersey, that person is entitled to a written accusation known as an indictment issued by a properly impaneled grand jury. These important constitutional principles are sometimes strained by the “lesser include” offense concept. Under some circumstances, the lesser included offense doctrine could allow a jury to convict a defendant of a crime not charged in an indictment.

Today, New Jersey’s Criminal Code (Code) defines a lesser included offense as one where: (1) the lesser offense has proofs that require some or less of the proofs required by the charged offense; (2) the actor attempts or solicitation to commit the charged offense or lesser included offense; and (3) the included offense has the prospects of a lower degree of injury to people properties or public interest. In 1986, in a case titled State v.LeFurge, the Court was required to determine whether the constitutional precepts referenced above were abridged by that part of the Code that made a conspiracy a lesser included offense.

The facts of that case related to the theft of 5,000 cases of canned tuna from a warehouse by individuals working in concert. Ultimately, a grand jury issued an indictment charging defendant and some of the others with theft. One of the actors made a deal with the government. The defendant went to trial. At the end of the state’s case, the trial court dismissal the theft offense. Before defendant presented his case, however, the trial court advised him that he intended to charge the jury that defendant had conspired with others to commit the theft. The jury convicted defendant of conspiracy. In essence, defendant was convicted of an offense that was not charged in the indictment. Ultimately, the case found its way to Supreme Court.

In analyzing the question as to whether defendant could be convicted of an offense not charged in an indictment, the court returned to the purposes of the constitutional prescriptions relating to an indictment issued by a grand jury to determine if defendant’s conviction of a conspiracy could past constitutional muster. The purposes of these constitutional principals, so the Court said, are to: (1) inform an accused of the nature of the charges in order to allow him/her to prepare a defense (Notice Concept); (2) ensure that an accused is not later prosecuted for the same crime (Double Jeopardy Concept); and, (3) make sure that the trial jury does not convict an accused of an offense that was not considered by the grand jury. (Substitute Verdict Concept)

As to the Notice Concept, the Court said that defendant had sufficient notice to defend against the conspiracy offense because the Code specifically said that a conspiracy was a lesser included offense. The court also looked at the facts presented to the grand jury to sustained this conclusion. In that process, it observed that defendant had taken over 5,000 cases of canned tuner while working in concert with others, and to that extent, the court said it was "difficult to see how defendant was in any way surprise or prejudiced" by the conspiracy charge given to the jury by the trial court.

As to the Double Jeopardy Concept, the Court looked to the compulsory joinder rule contained in the Code and concluded that under the circumstances of the case defendant could not be prosecuted a second time for the same or similar offense because the compulsory joinder rule requires the government to bring into one indictment all known charges against an individual that evolve from the same criminal episode.

With respect to the Substitute Verdict Concept, the Court said that for purposes of assessing whether a lesser included offense like conspiracy could be considered by a jury, it was necessary for the trial court to determine whether "the elements of the crime of conspiracy were fairly implicated in the evidence that was considered by the grand jury’s deliberations”. In this regard, the court returned, once again, to the facts of the case and determine that a conspiracy was fairly implicated in the evidence that was actually considered by the grand jury. Given all the circumstances, the court affirmed the conviction of the defendant.