State of New Jersey v. Victor Gonzalez, 130 A.3d 1250

Background

Defendant Victor Gonzalez was tried for armed robbery, conspiracy, multiple aggravated-assault counts, weapons offenses, endangering an injured victim, and hindering after Marcus Zayas robbed and shot victim Brian Arnold; Zayas pleaded guilty to attempted murder and conspiracy and testified for the State.
The State's theory was that Gonzalez conspired with or acted as an accomplice to Zayas and Adrian Aponte; Gonzalez claimed duress and denied voluntary participation.
At trial the judge repeatedly used the phrase “and/or” in charging the jury about the relationship between conspiracy/accomplice liability and the separate substantive offenses (robbery and aggravated assault).
The judge also, during a jury clarification, misstated the mental-state requirement for attempt—saying attempt could be proven by knowingly or recklessly attempting to cause serious bodily injury—contrary to statutory and precedent law requiring purposeful intent for attempt.
Additional contested matters: testimony about an arrest warrant and defendant’s pretrial incarceration was admitted without limiting instruction; the court charged theft (instead of attempted theft) as a lesser-included offense; defendant did not object at trial to most of these charges.
The Appellate Division held the jury-charge errors (particularly the pervasive use of "and/or" and the erroneous attempt instruction) were plainly capable of producing an unjust result, reversed the convictions, and remanded for a new trial.

Issues

Issue	State's Argument	Gonzalez's Argument	Held
Whether pervasive use of “and/or” in jury charge rendered verdict ambiguous / denied unanimous verdict	The charge read as a whole and evidence weight overcome any ambiguity; no objection was made	Repeated “and/or” created ambiguity about whether jurors unanimously found conspiracy/accomplice liability for the same substantive offense(s), risking nonunanimous or element-deficient convictions	Reversed: “and/or” usage made instructions hopelessly ambiguous and could produce nonunanimous or element-deficient verdicts; new trial required
Whether judge’s clarification that attempt could be proven by knowingly or recklessly attempting serious bodily injury was legally valid	Argued earlier correct instructions were given and later misstatement was immaterial when read in context	Misstatement converted attempt’s required purposeful state of mind into a lesser mens rea, violating controlling law	Reversed on this ground as well: attempt requires purposeful intent; the later erroneous instruction was reversible despite earlier correct statements
Whether testimony about arrest warrant / pretrial incarceration required limiting instruction or warranted reversal	Evidence was not so prejudicial; a properly instructed jury would not infer guilt	Admission of arrest/arrest-warrant evidence and jury awareness of incarceration was prejudicial; limiting instruction should have been given	Not a standalone ground for retrial here: no contemporaneous objection and error not sufficiently prejudicial; court suggested judge should have sua sponte limited jury but found no reversal on this basis
Whether charging theft (rather than attempted theft) as lesser-included offense was reversible	No consequence because jury convicted of robbery and did not rely on lesser-included instruction	The wrong lesser-included instruction was erroneous	Harmless here: error had no bearing on outcome; assume corrected on retrial

Key Cases Cited

Fisher v. Healy's Special Tours Inc., 121 N.J.L. 198 (E. & A. 1938) (historic criticism of the ambiguity of “and/or”)
State v. Gentry, 183 N.J. 30 (2005) (verdicts invalid where jury lacks unanimity about which actor committed an element)
State v. Rhett, 127 N.J. 3 (1992) (attempt requires purposeful intent; misstating mens rea for attempt is reversible)
State v. Simon, 79 N.J. 191 (1979) (erroneous jury instructions are poor candidates for harmless-error rehabilitation)
Sullivan v. Louisiana, 508 U.S. 275 (1993) (a defective reasonable-doubt instruction deprives defendant of jury-trial guarantee; appellate courts cannot hypothesize a valid jury verdict)