*1 IV. part, in affirmed judgment is reversed Appellate Division’s part. affirming part Justice reversing part For —-Chief LONG,VERNIERO, LaVECCHIA, PORITZ and Justices ALBIN, ZAZZALI, and WALLACE—7.
Opposed—None.
Janet (Peter Jersey, Harvey, Attorney of New respondent General C. attorney). opinion LaVECCHIA delivered the of the Court.
Justice appeal application “incomplete” This concerns of the mistake-of- pursuant fact defense available to N.J.S.A. 2C:2^b. Defendant charged possession possession Pena was with of cocaine and Jose of cocaine with intent to distribute. His defense was transporting stolen fur believed the suitcase he contained coats, requested charged not cocaine. Defendant that the that, accepted on mistake-of-fact if it his mistaken defense belief, uncharged, him it could convict non-lesser included receipt property. that it stolen We hold was error request, for the trial court to have refused defendant’s notwith- standing receiving property the crime of stolen is not a charge lesser-included offense of either in the indictment returned constrained, therefore, against defendant. We are to reverse and remand for a new trial.
I. 25, 1995, Acting tip, August Authority police on a Port Airport officers at Newark detained defendant after his arrival on Houston, flight A Drug from Texas. United States Enforcement (DEA) Agency agent stationed in Houston had informed Port Authority x-ray during flight officers that an taken check-in indicated that defendant’s suitcase contained several bundles of an apparent dangerous questioned by controlled substance. When Authority suitcase, the Port officers about his defendant stated packing bag that he had done “most of’ its and that the contained things.” directly “clothes and When asked whether the suitcase any drugs, responded, contained “I don’t know.” *4 According Defendant consented to the suitcase’s search. to the witnesses, appeared unsurprised State’s when sleeping bag search revealed that the suitcase contained a wrapped plastic seventy-five percent around thirteen bundles “pure” weighing approximately kilograms (roughly cocaine fifteen equivalent thirty-three pounds). and one-half The cocaine was $800,000. estimated to have a street value of In addition to the shoes, drugs, pair the suitcase contained a new of tennis two new towels, empty hangers. and six Defendant was indicted for third- (CDS), degree possession dangerous of a controlled substance 2C:35-10a(1) (Count I), first-degree violation of N.J.S.A. distribute, possession of CDS with intent to in violation of N.J.S.A. 2C:35-5b(1) (Count II). plea charges
Defendant’s initial conditional was vacated Pena, 158, 160-64, appeal. N.J.Super. State v. 693 A.2d 1195, 1195-98 denied, (App.Div.), 700 A.2d N.J. certif. (1997). Appellate plea Division held that the lacked a factual by basis because defendant had maintained his innocence assertion that he did not know the suitcase contained cocaine. trial, Ibid. At defendant’s case consisted of his mistake-of-fact arrest, background defense. As to the events that led to his clothing that in 1991 testified he had worked store frequent Broadway and had occasion to the area of and 142nd City. acquainted Street in New York man There he became with a “Rudolpho named Santana.” Defendant knew that Santana sold televisions, VCRs, objects expensive clothing, stolen such as drugs. but he claimed he did not know that Santana sold defendant, August according In engaged him Santana fly fur Houston and obtain some stolen coats. Defendant’s coats, pick up approximately instructions were to each worth $5,000 $6,000, Airport. and return with them via Newark $2,000. exchange, paid supplied defendant would be Santana ticket, cash, purchased flight departing defendant with a with for a Airport from LaGuardia to Houston. airport,
When he arrived the Houston defendant was met (known “Antonio”) only a man himto and taken to a house. There, defendant obtained six coats that he described as medium size, length “furry.” packed full He testified that he the six suitcase, single coats into a aware at the time that he was engaging activity receiving property. in the criminal stolen suitcase, Although placing defendant admitted to the coats *5 any items later found pack of the other that he did not he claimed suitcase, hangers. including empty the six in the morning overnight the house and the next stayed Defendant His one- airport flight for a to Newark. Houston was taken him cash. Accord- purchased for with way again ticket was airline car defendant, placed in the trunk of the was ing to his suitcase unclear as to when airport the record is drive to the but for the terminal, checked the suitcase At that occurred. and, appropriate at the flight upon his arrival Newark for the carousel, that bore his name he claimed the suitcase luggage officers, Authority who had been observ- The Port claim number. him for plane, approached then ing him since he disembarked the questioning. case, expert explained an who presented the State part
As of its because, carrying when he or she is CDS that a courier knows drug being transport- actual if the courier does not know the even “$1,000 ed, weight (customarily on the remuneration is based [kilo]”) identity was of the substance. Defendant and not the cocaine; kilograms of therefore carrying approximately fifteen $15,000. The State anticipated receiving at least could have not know what he emphasized the unlikelihood that defendant did actually carrying to him. was and its value jury requested a instruc of the evidence defendant
At the close pursuant defense available incomplete tion on the mistake-of-faet acknowledged that the “mistak Defendant to N.J.S.A. 2C:2-4b. offense, in violation of N.J.S.A. receipt property of stolen en” 2C:20-7, charges either of the was not a lesser-included offense of indictment, indictment was he did not contend his but that if including charge. Defendant asserted flawed for criminally testimony, held he should be believed only lesser offense” he believed he culpable for the “different and 2C:2-4b, can committing “there still was because under N.J.S.A. ..., slight ... and also a shift downgrading be a ... committed.” the one The trial requested court denied the instruction. It viewed the N.J.S.A. 2C:2-4b mistake-of-fact inapplicable defense as to a non- *6 lesser included offense and held that defendant was restricted to arguing that negated his mistaken requisite belief state of finding mind for a guilt possession charges. the cocaine The charged jury court possession on the elements of posses- sion with intent to distribute. given respect No instruction was in defense; rather, of defendant’s charge mistake-of-fact tracked instruction, jury the model any molding without to the facts related to that registered objection defense. Defendant no charge given except as preserve appeal for the denial of the charge request. earlier jury
The found defendant on both counts. The court merged charges and sentenced defendant to the maximum first-degree term for conviction of possession with intent to dis- twenty years’ tribute: imprisonment ten-year period with a parole ineligibility. Appellate Division unpub- affirmed opinion. agreed lished It with trial court that defendant’s asserted mistake of fact related to his state of mind. Based on belief, that mistaken defendant could contest whether he knowing- ly possessed, possessed distribute, with intent cocaine. However, because the of receiving property, crime stolen N.J.S.A 2C:20-7, is anot lesser-included charges offense to either of the indictment, Appellate Division concluded that the trial correctly court charge jury declined to on mistake of fact under N.J.S.A 2C:2-4b. granted petition
We defendant’s for certification “limited to the arising issues out of request the trial court’s denial of the ” charge respect 431, of ‘mistake of fact.’ 175 N.J. (2003). A.2d 478
II.
A.
This case
impression:
concerns matter of first
whether
a defendant
incomplete
avail himself of the
mistake-of-fact
Jersey
2-4b of the New
defense available under Section
Code
(Code)
mistaken
com
Justice
when the
belief concerns
Criminal
charged.
mission of a non-lesser included offense
the offenses
fact
law
has been characterized
an area of
rife with
Mistake
Scott, Jr.,
Wayne R.
&
confusion. See 1
LaFave
Austin W.
(2d
1986)(LaFave
5.1(a)
Law
at 575
&
Substantive Criminal
ed.
Scott) (observing
“[n]o
area of
substantive law has
traditionally
than
been
more confusion
that of
surrounded
law”). Thus,
or
fact
with
ignorance mistake of
or
faced
a novel
affecting
question in
uncertain
criminal
this
area
law
bedrock, namely,
accepted
culpability,
begin
with the
re
voluntary
for
quirements
liability: proof
criminal
of “a
act and a
culpable
imposing
state of mind
minimum
[are] the
conditions”
Sexton,
1125,
A
liability.
criminal
v.
160 N.J.
State
.2d
(1999)
-2).
2C:2-1,
(citing
N.J.S.A.
*7
“
”
Code,
source,’
‘conceptual
like its
Penal
Model
(MPC), Sexton,
94,
supra,
(quoting
at
A.2d 1125
Code
160 N.J.
733
241, 242,
Nickolopoulos,
v.
Richardson
110 N.J.
305
possession.”
duly
nate his
2C:2-1c. As the
N.J.S.A.
court below
matter,
during
appeal
noted
the first
this
when used
our
statutes,
...
“[possession
signifies
knowing,
criminal
‘a
intention
designated thing,
al
a
accompanied by knowledge
control
Pena,
N.J.Super.
162-63,
supra,
its character.’”
301
at
693 A.2d
added)
Montesano,
(emphasis
(quoting
State v.
298 N.J.Su
612,
597,
denied,
per.
27,
(App.Div.),
689A.2d 1373
150 N.J.
certif.
(1997)).
McCoy,
liable for
charged
the CDS
offenses with which he was
aware,
minimum,
unless it found that he knew or was
at a
that he
Pena,
possessed
162-63,
supra,
N.J.Super.
at
CDS.1
693 A.2d
(Criminal),
Jury
See
Charge
1197-98.
also Model
Possession
(N.J.S.A. 2C:2-1) (1988);
(Criminal),
Charge
Jury
Model
Unlaw-
(N.J.S.A.
ful
Dangerous
Possession of a Controlled
Substance
2C:35-10) (1988);
(Criminal),
Jury Charge
and Model
Possession
Dangerous
of a Controlled
Substance with Intent
to Distribute
(N.J.S.A. 2C:35-5) (1992). Culpability requirements
appear
would
However,
required
to render that result self-evident.
we are
interpose
culpability analysis
into that basic
the mistake-of-fact
defense N.J.S.A 2C:2-4.
1Whether defendant must have known that he
specific quantity
possessed
cocaine,
CDS,
or
another form
is an issue that is
opposed
any quantity,
Florez,
594-95,
in this matter.
State v.
A.2d 1052 material of is possessed quantity offense), Edwards, 1, 4-6, element of CDS with State v. 607 A.2d 257 N.J.Super. 1992) (App.Div. (holding drugs 1312, 1313-14 and nature of quantity pos sessed of offense, are not material elements CDS and that defendant's asserted drug Section 2-4b mistake-of-fact belief that defense on predicated possessed inapplicable). Cannel, was hashish rather than cocaine was therefore See also (2003)(Can- Annotated, New Criminal Code comment 3 N.J.S.A. 2C:1-14 Jersey nel) (discussing knowledge nature, of on whether of or split authority quantity, offense). illegal value of contraband is material element of
306
B. 2.04, provides § in after MPC N.J.S.A. 2C:2-4 rele- Patterned part: vant Ignorance law is if of fact as to a matter of fact or a defense a. or mistake underlying the and: arrived at the conclusion mistake reasonably (1) negatives or offense; It mental state to establish the culpable required (2) ignorance state mind such or The law of established provides
mistake a defense. constitutes ignorance Although or mistake would otherwise afford defense to b. charged, is available would be of another the defense however, situation been as he In such case, offense had the supposed. grade degree ignorance or mistake of the defendant shall reduce the of those of offense of which he would offense which he be convicted to guilty had the situation been as supposed. meaning application 2-4a of the Code was Sexton, recently supra. provides addressed That subsection for complete liability to criminal based on mistake of fact defense reviewing adoption matter law. our or After Code’s culpability, we formulation for concluded in MPC’s mental-state was, effect, technically unnecessary, that subsection a. Sexton “ simply person may confirm[s that convicted ‘[it] n]o because beyond proven ... of an offense unless each element a reason ignorance proof If the mistake able doubt.’ defendant’s or makes required prosecution culpability impossible, element will ” necessarily in its 160 proof fail the offense.’ N.J. at Grall, A. (quoting A.2d at 1128 Paul H. Robinson & Element Jane Analysis Liability: Defining Criminal The Model Penal Code (1983) Beyond, L. Rev. (quoting 35 Stan. 726-27 MPC 1.12(1) 1962))). (Proposed § Official Draft Because even an “un i.e., mistake, negligence, negate reasonable” would the mental required liability, necessary it state criminal found language essentially conform N.J.S.A. 2C:2-4a lan 2.04(1), § guage by eliminating of MPC our Code’s additional requirement that a mistake be defendant’s “reasonable.” N.J. 105-07, A.2d at 1131.2 2.04(1) Unlike 2C:2-4a, N.J.S.A. MPC no that a requirement imposes defendant’s mistake of law fact be or "reasonable." *9 Code, hand,
Section 2-4b of our on the other is identi 2.04(2). However, § cal to appear among MPC we only 2.04(2) of adopted § handful states that MPC verbatim.3 As consequence, is a may there dearth case to which law we advert bottom, considering provision. in this At the issue of whether and, applies so, Section 2-4b to a non-lesser included offense may sub-issue of what guilty, offense defendant be found involve statutory interpretation. matters all As in exercises of statuto ry interpretation, we language legislation. start with the of the unambiguous If statute is clear and on face and its admits one only we need delve no than
interpretation, deeper the act’s literal terms to divine the Legislature’s unambiguous .. intent. if the statute not clear However, is and guide its consider sources other than the face, literal words the statute to our [T]he task. Court considers extrinsic such as the interpretive factors, statute’s legislative Legislature’s and to ascertain purpose, history, context statutory intent. (citations 462(2001) [State v. Thomas, 166 N.J. 560, 567, A.2d omitted).] internal marks quotation it possible Here does seem legislative discern intent concerning application Section 2-4b’s to non-lesser included of- solely the language points fenses from of the statute. The State to the second sentence of referring Section 2^4b to reduction in “grade degree” for which asserting may the defense be convicted. The State views that legislative reference as indicative of a intent to have the defense only available lesser-included offenses that a defendant mistakenly have committing. believed that he was The State thus posits possible statutory one construction of the language; howev- er, only reasonably it is not the possible. construction that appears
The term “lesser-included offense” nowhere the text 2-4b, 2C:2-4b. The N.J.S.A. first sentence which available, incomplete only establishes when the defense is refers being guilty a defendant of “another offense had the situation been supposed.” as he The Code contains which other instances Legislature offense,” included the modifier or a “included refer- 5-206(d); § See also Ark.Code Ann. Haw. Stat. Ann. 202-219. another, it meant to being included when do
en.ceto one offense -8e; 2C:1-8a(1), -8d, It N.J.S.A. 2C:1-9a. so. See N.J.S.A. *10 Legislature to limit N.J.S.A. that intended would seem offenses, it would have stated that 2C:2-4b lesser-included inferentially. expressly, not intent then, appear multiple to be appeal raised in this there As respect in of mistake- interpretations of Section 2-4b defendant’s (1) only encompasses lesser- of-fact defense: that Section 2-4b offenses, provides against no therefore defense de included charges receiving property stolen is not a fendant’s because CDS (2) charges; of or that Section 2-4b lesser-included offense those offenses, provides encompasses non-lesser included therefore which, testimony, by if the believed his defendant a defense (a) possession third-degree of of should have been convicted either (b) property, third-degree possession or of Because stolen CDS. may ambiguity, turn to extrinsic aids statute is free likely discerning legislative underlying for in intent assistance Thomas, supra, N.J. at 767 A.2d at this Section. See 462-63.
C. source, tracing appears 2—áb its it that igno “final language originated Section’s as the version” of the provision adopted in rance or mistake-of-fact for inclusion language in the Official MFC. The evolution of that Draft MPC 2.04(2) specifically § the drafters considered demonstrates apply whether to defense to a allow the mistake-of-fact non- originally lesser included offense. As drafted the American 2.04(2) (ALI), provided, part: § Law in Institute MFC relevant (2) ignorance charged or but When mistake affords defense offense [and included] of another had the situation would be offense been as he was, he it be convicted that other offense. may supposed (1): [Alternative “he commit be convicted an other may attempt offense.”] (2): charged [Alternative “he shall be convicted the offense but be may if the as sentenced as be authorized situation had been he may supposed”.] only 2.04(2)(Tentative 1955)(alternations § original).] [MFC Draft No. 4 accompanying Reporter’s Commentary The to the Tentative Draft above, provision quoted recommended the rejecting Alternative (1) (2). Id. 2.04 Reporter’s cmt. 2 137. The Commen- tary highlighted also a flaw in approach being suggested, implicate right flaw that would a defendant’s to indictment if the applied mistake-of-fact defense be were to a non-lesser included offense. suggested is, however, There as to important how far the problem procedure No is may when the principle applied. difficulty presented lesser offense is an generally crime, included conviction of which is on the indictment permitted or
information filed. The issue arise, when one is not however, included charged knowingly other. with defendant, example, may possessing thought package If his narcotics. defense that he found contained different kind of is it possession contraband, procedurally necessary that he be if his defense is believed? acquitted Some members of the Council of ground the Institute consider that it is, the offense which the upon thought committing is not in the included accusation made. The *11 thinks that the should be Reporter procedural requirement relax- susceptible of charge ation in this situation; the no special needs notice the when defendant of he avows his commit another crime to the conviction crime that escape effort of charged. objection has been But the [ALI] considers the valid, the procedural if can section be limited cases an where included is and still involved have offense some substantial value. added).] (emphasis [Id. at 137-38
Ultimately, suggested rejected. language the Richard See Singer, The Model Penal (Possibly Only Code Three Two One) Ways Rea, Avoid Courts Mens Crim. L. Rev. Buff. (2001) (noting proposed provision). ALI overruled The ALI differently on a any settled worded version that language omitted limiting provision the to lesser-included offenses:
Although ignorance or mistake a would otherwise afford defense offense charged, guilty the is not if defense available the defendant would of another had offense the situation been as he In such the supposed. case, however, ignorance grade degree or mistake the the shall reduce the of defendant which he convicted to those the which he would be offense of offense of guilty had the been situation as he supposed. 2.04(2) 1962) (Proposed added). (emphasis §
[MPC OfficialDraft See also MPC 2.04(2) (Official 1985) (same); § Draft and Revised Comments N.J.S.A 2C:2-4b (same).] (2) 2.04(2) is, substance, [1955 of the § “in Alternative MPC draft, Advisory and the both the Committee which tentative] problem of the the preferable the treatment Council deemed charged mistake crime actor who as a defense the submits which, thought, he would have involved had the facts been 2.04(2) § of another crime.” MPC note at commission 1962). Thus, although a Official Draft (Proposed status of section unavailable, charged “incom- is complete defense the crime punishment operates preclude conviction and for plete” defense charged but for graver offense with which defendant was Reporter’s in explained final culpability. there is no As which Explanatory Note: Official Draft 2.04(2)] § [MPC land of one where the actor raises a case, deals with special charged, he as a to the offense with which is but where he belief defense particular he offense had the situation been as this would be another supposed. 2.04(1)] § [MPC otherwise be available under is the defense would event, higher grade degree The be convicted or denied. cannot of offense defendant which could have been convicted had the situation been as he than the offense of supposed. (Official § Draft note at 268 and Revised Comments [MPC 2.04 Explanatory 1985) added).] (emphasis Commentary expansive explanation: final revised is more 2.04(2)] [MPC to a limited distortion in addressed problem may produce claims but a criminal where the defendant mistake where law, namely it to had the situation been as the defendant believed be. still would have occui-red altogether, If an actor to one offense the defense were denied culpable respect hand, could be convicted of a much more serious offense. On other go should not for on either view —the facts as occurred or as free, they defendant believed them to be —a criminal offense was committed. burglary Burglary generally is defined The offense of will illustrate problem. building or 221.1 to include into structure entry any occupied committing graded and is as a therein, normally felony crime purpose building degree. degree, It is a of the second is a however, third felony dwelling If the formed his a manner that believed, house. belief *12 building a reckless, not be that the he could be store, could characterized degree a third only convicted of felony. of this in To the the defense of mistake in situation would be effect relevance deny to level re-characterize, for this the culpability normally required special purpose, a the Code for the material element of the more serious offense. by Presumably judgment led to the inclusion as a material element the requirement considered dwelling aggravate degree building a a in the offense to that the be order second measuring be an the defendant’s toward that element should felony; culpability grading in extent important exercise the of the involved. The doctrine criminality graver when a that one intends lesser crime he be convicted of offense may generally committed leads if it to anomalous results is in the inadvertently applied while the law; and obtains to some penal extent its principle homicide, generality rightly has been denied. Even the in the circumstances is not to convicted the supposed of graver clear crime, it seems that he should not be One is that acquitted. possibility go the case could to the as an commit lesser offense. Another attempt would a conviction lesser of the the one which he possibility permit offense, would have committed had the facts been as he them to be. A third supposed 2.04(2), is the which one embraced is to possibility, deny defense these circumstances, but limit the of the and the classification offense available of the defendant to those that would have dispositions been available upon of conviction the lesser offense. These three alternative were as such in Tentative Draft No. approaches published (1955). 4 at The Committee and the Council selected the Advisory approach 2.04(2)], § largely ground [MPC reflected in on it avoided a procedural objection might to the other alternatives, namely, they lead to conviction of a charge. crime that the or information indictment did not The important point, whichever these solutions is is that adopted, measure effective of defendant’s should be his not the liability actual his conduct. culpability, consequences of through is This the result obtained of a here, the denial that otherwise defense would be available. added) (footnotes omitted).] § (emphasis [Id. 2.04 2 at 272-74 cmt. commentary explanation does not end there. The 1971 Jersey proposed Section 2-4b the New Criminal Law Revision (Commission) (recom- the MPC places Commission on language Code) mended for verbatim inclusion in our gloss is confusing somewhat due to a few obvious internal errors. None- theless, patent it too discusses the Commission’s to have intent apply defense to non-lesser included offenses and focuses determination crime which a defendant be found guilty when his mistake involves such criminal conduct. The Commission stated:
frequently make the When The second possible Ed. lesser, offense, believed Note: or i.e., the them, [3] [4] find him conduct [1] stated as This change find offense of would be find probably him non-criminal. [to requiring guilty him pre-Code which would have been guilty was intended to guilty of an that the attempt New If graver some it is Jersey mistake greater not, offense under his view of the to commit the lesser offense. The Code offense, [Z\find the mistake does not excuse at all. read law] must be is 2C:2-4b.] found in guilty but him of such limit were the Mistake guilty 2C:2-4c. sentence nature as to facts facts, dogma lesser [Gann as he it is *13 stating existing be rule that the cannot alleviates the by found of greater negated, the the mistake but can convicted the which is by of offense the had been as have been committed mistakenly which would facts was i.e., [Gann Ed. Note: This intended to be, probably believed them the third (1955). read, above, 17-137 second] alternative, MPC T.D. pp. (reprinting II The New comment 4 on N.J.S.A. 2C:2-4b [Cannel, Jersey supra, Law Revision Commis- Code, Jersey Penal Final New Criminal Report of added)).] (1971)(emphasis sion cmt. 3 on 2C:2-4 III. A. 2.04(2) commentary § It that a is evident from the on MPC that it was another offense that he was defendant who believed committing, complete liability to be allowed defense to 2.04(1). § permitted It also clear that efforts to under MPC incomplete permitted limit the mistake-of-fact defense under MPC 2.04(2) considered, rejected, § in the included offenses was language in MPC Official Draft. final contained The Official rejection pointedly proposed Draft version of demonstrates difficulty 2.04(2), highlighted perceived §MPC which had incomplete allowing defense in the context of defendant’s committing a mistaken belief he was non-lesser included offense. adopted by A the ALI version eschewed such a limitation was change. our see incorporated and later into Code without We no 2.04(2) § reducing reason to infer MPC reference grade degree “the [the defendant] offense which convicted,” incomplete to limit the the MPC drafters intended 2.04(2) of- mistake-of-fact defense MPC lesser-included only. fenses compelling Commentary by
Even more is the the Commission Code, concerning despite of our the obvious errors in 2-4b Commentary options transcription. The discusses that were provision specifically for inclusion in the *14 allow the to mistake-of-fact defense a defendant who believing committing commits one crime while himself be another, included, non-lesser offense.
Moreover, were we to conclude otherwise hold that a only in such argue defendant a circumstance could that mistak belief, by accepted jury, negated en the required mental (the graver charged “all-or-nothing” state for the offense position State, by taken Appellate the trial court and the Division here), put position we would the defendant in no different a than is he under Section 2-4a. Section 2-4b would be reduced surplusage in Enabling such circumstances. a defendant to avoid entirely conviction was not the of desired intent the drafters of predecessor Section 2-4b and its in the MPC. Just the converse appears namely, to have been intended: that the be culpability, allowing held liable his lesser while not conviction greater wrong by for the of which he was not aware. As stated Commentary, the MPC the “effective measure of defendant’s liability culpability, consequences should be his not actual of § his conduct.” MPC 2.04 cmt. at 273-74. The drafters not did intend that a committing defendant who believed he was a non- liability lesser included be offense would able evade criminal entirely.
B. mix, however, commentary sum the MPC and Code is a defendant, respect identifying asserting the crime for which a may under guilty. mistake-of-fact defense Section 2-4b be found addition, contend, there are criminal law scholars who essential- ly, culpability analysis that the is determination critical punish Proponents how a defendant under 2^b. approach argue culpability for the actual be defendant’s given controlling may effect as that which a between mistakenly thought have done that which he he did. See 5.6(c) Scott, differently, al- § Stated supra, & at 405.
LaFave graver crime if not held liable for a though a defendant should rea, requisite may be convicted for mens he he did not have the another, was com- included crime that he believed he non-lesser mitting. He language. of our interpretation is Code’s
That Cannel’s “[bjasically, says if a explains what is that [Section 2-4b] deer, reasonably shooting he and he is person is believes murder, only of person, can but shooting a convicted Cannel, supra, comment on N.J.S.A. hunting out of season.” LaFave, who construes 2C:2-4. Cannel’s view shared 2.04(2) language to mean that a defendant MPC source “ ‘of the offense of which he would be had be convicted ” sup- notwithstanding that the supposed,’ situation been as he actually posed is not a offense of that lesser-included *15 5.1(b) Scott, supra, § at & n. 53 committed. LaFave & 2.04(2) (Official § (quoting Draft Revised Comments MPC 1985)). sure, scholarly
To the are not of one mind be commentators subject. Although generally agreed that a defendant this it ought acquitted if that it was another lesser crime not be he claims competing for supposed committing, was the rationales he he supporting a conviction on some lesser crime are debatable. Cer- the tain commentators would construe MPC and Section 2-4b with, of, “the permit charged a defendant to be convicted satisfied,” [graver] offense for which the actus reus is but limit offense, severe, punishment if it to that of for that would be more thought committing.” was 1 Paul H. the “offense he he (1984 al, 62(c)(5) § et Law & n. 37 & Robinson Criminal Defenses 2002-2003)(Robinson). Supp. Singer, supra, See also Buff. Robinson, According both the Crim. L. Rev. 191. to Professor contemplate application of doctrine of MPC and Section 2-4b elements,” requisite mental which would allow the “substituted actually imputed rea for the crime committed from mens for he culpable defendant’s admitted mental state the crime Robinson, 62(c)(5),89(e). supra, supposed committing. §§ he was (and although of the MPC language Robinson adds 2-4b) permit would seem “to culpable actor’s mental any for provide state other offense to for imputation, basis approach adopt equivalency theory better is to an that would require blameworthiness,” that the other offense be one similar burglary such mistaken arson or of a dwelling rather than a 62(c)(5) store. See id. & n. 34. sum, agree, and as all the above scholars seem to
language of Section 2-4b and in the MPC provision its source reasonably support approach permitting present incomplete his mistake-of-faet defense under N.J.S.A 2C:2-4b when he claims committing he was another non-lesser included graver offense and not the different and crime for which he was defense, indicted. That mistake-of-fact if jury, believed prevent would punishment conviction and graver crime. however, It does not entitle him a complete acquittal, not even supposed the other offense committing he was was not charged in the indictment and not even if it lesser- charged included the offense in the indictment. among competing
As may views on what offense defendant punished, be convicted and for which he we find that it is analytically precepts more consistent with Code to allow conviction punishment of a defendant for the crime of which he was culpable, actually that is the crime that he would have committed proven had the facts to be as he believed. We choose that approach an approach over that would convict defendant of a crime for which he did not have intent on the basis of substituted intent, grade and then reduce the conviction in to match the *16 degree culpability of the offense he believed he commit- was ting.4 jury If “explanation” believes the defendant’s that he 1-2(5) Code The fault and See N.J.S.A. 2C: and 2-2. emphasizes culpability. given to considerations is discernable also from primacy culpability Code's treatment the related area of offenses. offenses attempt Attempt of a non-
thought
acting in furtherance of
commission
he was
offense, may
the defendant of
crime
it
convict
included
lesser
Thus,
testimony.
jury
hold that a
must be
on the basis
2C:2-4b that
it
convict
that under N.J.S.A.
instructed
the crime to which he has admitted
it believes
defendant of
instance,
to
testimony.
In this
defendant was entitled
receiving
stolen
charge that would allow him to be convicted
(a crime of the third
property, in violation of N.J.S.A. 2C:20-7a
indicted,
charges
which he was
degree), in addition
on
CDS,
I,
third-degree possession of
violation of N.J.S.A.
Count
II,
2C:35-10a(1);
first-degree possession of CDS with
and Count
2C:35-5b(1).
distribute, in
violation of N.J.S.A.
intent
sure,
analytic
approach
mens rea
has
To be
the substituted
attraction, drawing
language
2C:2-
it does from
N.J.S.A.
charged,
of a
for the crime
punishment
that refers
4b
supposed
of the crime he
he
“grade
degree”
and
reduced
by,
committing.
approach espoused
was
Under
alternative
others,
among
Singer,
grade
Professor
defendant could have
degree
first-degree
he
of offenses for which
was
and
indicted —
possession
third-degree
and
of CDS with intent
to distribute
possession
grade
degree
of CDS —reduced to
third-degree receiving
he
he
offense that
believed
committed —
approach
results in convic-
property.
stolen
this matter either
grade
degree,
third-degree
of an
same
tion
different,
However,
third-degree drug
crime.
offense carries
penalties
third-degree receiving
and more severe
than
stolen
including
potential
property,
of an extended term sentence
$75,000
2C:43-6f,
up
and a fine
for third-
under N.J.S.A.
possession
degree
pursuant
of CDS with intent to distribute
conviction even if the actus reus of the
focus
allow
primarily
culpability
offense is
See N.J.S.A. 2C:5-1. See also McCoy,
attempted
incomplete.
supra,
(recognizing
convicted of
317 2C:35-5b(5), $15,000 N.J.S.A. versus a fine of for third-degree 2C:43-3b(1). receiving property pursuant Thus, stolen N.J.S.A. Singer’s approach place sentencing judge Professor would position meting drug the awkward a for out sentence a offense only when defendant had the rea mens for a theft offense. As stated, approach guided by our here is the Code’s direction that applied punishes the criminal laws be in a manner that an individ culpability. jury accepts ual his If the testimony defendant’s drugs, and finds that he did not carrying believe punishment legislature should be that which the has chosen to apply specific to the crime the defendant believed he was commit holding ting. purpose. Our serves that sensible Finally, to extent perceived that the MPC drafters “procedural approach, difficulties” with associated our see MPC § 2.04 cmt. 2 at (expressing through concern for notice right guaranteed), indictment where that we find that those apparent difficulties to more than from real. Deviation requirement justified fair through may notice indictment a when defendant raises his intention to commit the non-lesser included charged. his defense to the offenses See Scott, 5.01(c) Indeed, supra, LaFave & although at 584 n. 53. unindicted, jury a submission to of an non-lesser included offense guarantee implicates person shall be held to answer “[n]o a presentment for criminal offense unless on or indictment of a ¶I, 8, grand jury,” recognized N.J. Const art. we have right agree proceed waive the to indictment and Ciuffreda, 73, charge. on non-lesser v. included State 127 N.J. (1992). (allowing A.2d R. 3:7-2 See defendant in indictment). waive, non-capital in writing, right case to Ciuffreda, permitted exception require- to the waiver timing request. ments Rule 3:7-2 due to the source passion/provocation The defendant to a charge consented after all and, presented by the evidence had been parties context, the defendant’s oral consent was deemed sufficient Here, Ciuffreda, contemplated waiver. as in before charge receiving property might stolen trial that the unindicted included offense. have as non-lesser been submitted *18 hope jury the that the would His was built on entire defense testimony proceeded fur coats and the trial believe his about the clearly was the on that basis. Defendant satisfied with evidence possession proper- jury proposed to the of stolen submitted the on charge ty requested he that the unindicted offense because himself process rights His jury’s the due be submitted for consideration. those opportunity to were violated in to notice and defend circumstances.
However,
requested
had
that the
the State
whereas Ciuffreda
consented, here, the
charge be
and Ciuffreda
unindicted
submitted
objected
charge
requested.
defendant
The State
State
effectively
has
on its
contends that defendant
turned Ciuffreda
by
right
to
attempting to use his fundamental
to indictment
head
advantage against
prerogative
the
which unrelat
State’s
choose
not,
will,
v.
charges
charge
prosecute.
it
or
See State
ed
will
(“A
(1994)
Smith,
245, 253,
978,
642 A.2d
981-82
defen
N.J.
by
strategy
allowed
alter the State’s trial
dant should not be
unrelated,
offense,
admitting the
of an
less serious
commission
having
charge
jury,
objection,
the
then
the court
over
State’s
offense”);
v.
that it can
also
return
verdict on
see
State
463,
Freeman,
1195,
(App.Div.
N.J.Super.
735 A.2d
1999)
charging
are
(noting prosecutor’s
discretion and consent
jury
charge may
relevant whether unindicted
submitted
proposed
charge
when defendant’s
lesser-offense
is neither an
indictment).
by
nor one “embraced”
included offense
preclude
approach,
accepted,
if
would
defendant
The State’s
incomplete
from access
mistake-of-fact defense
Legislature
by
permitted
has
the inclusion of
2C:2-4b in
N.J.S.A.
statutory
our Code. Such a result would be inconsistent with
Moreover,
language,
history, as
and its
we understand it.
essentially superflu-
in rendering
view
2-4b
State’s
results
Section
ous,
con-
interpretation
for its
would limit
2-4b
applicable
existing
to a trial court’s
lesser-included offense
straints
charging responsibilities under N.J.S.A.
That
con-
2C:l-8.
would
independent significance.
found Section 2-4b’s
Sexton,
Finally,
as we did
trial
remind the
court that it
explain
must
in its instruction to the
the contours of the
incomplete
in light
mistake-of-faet defense
facts of
this case.
Sexton,
supra,
160 N.J. See
beyond CDS, and not possessed coats as the defendant contends, [CDS then should convict defendant of you receiving offenses] and not convict defendant of stolen property. *19 question general We shall refer the charge of a more on the subject to the Charges Committee on Model Criminal for review. sum, that right conclude the defendant has waived his to I, indictment him paragraph secured to under Article 8 of New Jersey asserting, Constitution as his mistake-of-fact defense possession CDS, that engaged he believed he was in the receipt property. criminal offense of of stolen The should have on that been instructed defense and should have been told testimony that if it believed defendant’s it could find him third-degree receipt property. crime of stolen
IV. acknowledge dissenting colleagues We that our would this end proper matter now because their that a view instruction would however, jury’s We, not have altered the verdict. are not willing make prediction that consistent with a traditional harm- analysis. way, Put is less-error another this case not so unusual require departure from presumes the well-established rule that that a trial court’s instructional error on a material issue consti- Warren, 571, 579, State v. 104 N.J. tutes See reversible error. 518 (1986) (outlining standards in this area A.2d 222-23 relevant law). circumstances, properly- a new trial before a Under those remedy. charged jury appropriate is the and the judgment Appellate The Division is reversed proceedings consistent with this matter for further remanded opinion. VERNIERO, concurring dissenting.
Justice analysis respectfully statutory I Court’s but concur with the I the trial disposition. from its ultimate would find that dissent charge was harmless court’s failure a mistake-of-fact defense error. fully appreciate [jury]
I instructions on material “erroneous error, only they presumed are to be reversible excusable issues Warren, v. a reasonable doubt.” State beyond are harmless (internal (1986) 571, 579, N.J. A.2d citation omitted). quotation marks Harmless error these circumstances However, ordinarily is unusual case in is found. this compellingly which the lends itself to a harmless-error record analysis. presented overwhelming evidence defendant’s State proofs undisputed expert testi-
guilt. Included in those were the (the mony city that Houston to which defendant traveled to secure contraband) cocaine; city drug for traffickers source (like purchase one-way purchased the ticket often tickets defendant) cities; they purchase those tickets with source (as here); happened cash and evidence that defendant himself was drug prior drug familiar with the trade because of conviction *20 (which by jury testimony). the learned his own
Importantly, physical evi- proofs the State’s also included the containing the that dence such as the suitcase cocaine carrying was when arrested. Defendant testified to his belief that cocaine, not rather fur that the suitcase contained but six coats sleeve, size, furry inside, long very ... described as “medium (We very suitcase, inspected comfortable.” which part average-size container, It approximately eight record. is an wide, high, twenty-four long, inches inches seventeen inches person carry.) to suitable one closing argument her assistant prosecutor pointedly evidence, to physical jurors,
referred asking testimonial get Wrong. fur how coats ... think many you [that] do can into suitcase? Six? you goes jury No. I want when you, [into room] the suitcase deliberation with drugs, drugs. I want how feel it is with and without the want you heavy And I to ask yourself those that I had asked of Because do you questions when you. you going going know, that, to find out for that you’re you’re the reason yourselves drugs, that defendant went to Houston was to as he up merchandise pick it. puts that, returning The conclusion is unmistakable its verdict, jury simply accept could that defendant was laboring under carrying “long the mistaken belief he was six sleeve, very furry” single jury’s fur coats in that suitcase. The surprise. by determination should come as no As demonstrated prosecutor, virtually impossible person the assistant it is for a carry by fit and six fur such coats in the suitcase used defendant. Affording an a fair accused trial does not mean that we must expect jurors accept utterly implausible or untenable de- fense.
Although the trial court did not instruct the on mistake-of- fact, theory charge. neither did it contradict its overall Moreover, jurors fully position. were aware the defendant’s Indeed, predicated was on proposi defendant’s entire defense tion, jury presumably which the understood based defendant’s (Defense testimony jurors. and his counsel’s statements to coun repeatedly jurors sel referred de defendant’s mistake-of-fact fense.) charge given ‘We must ... here] consider the [that counsel, light arguments argu made trial as those mitigate resulting prejudice less-than-perfect ments can from a Robinson, 32, 47, charge.” State v. 165 N.J. 754 A.2d (2000). *21 sum, beyond a reasonable doubt that brief I am satisfied altered the majority requires now would not have
charge that the defense, presented his mistake-of-fact jury’s Defendant verdict. Yet, “[ejonsidering the requested instruction. albeit without entirety, in their in the context of evidence instructions counsel, charge arguments am] of trial convinced that [I against fair.” given case] this was Ibid. Measured [that State, by nothing overwhelming proofs presented there was unjust capable producing an trial that was about defendant’s therefore, verdict, jury’s should not disturbed. result. The joins opinion. Justice PORITZ this Chief LONG, LaVECCHIA, reversing remanding For —Justices ALBIN, ZAZZALI, and WALLACE —5. PORITZ, part/dissenting part Justice Concurring in in —Chief and Justice VERNIERO —2. A.2d CARBONE, THE AN ATTORNEY
IN MATTER OF RUSSELL J. 022381980) (ATTORNEY AT NO. LAW 27, January 2004. ORDER having Disciplinary Board filed with the Court its Review 03-148, recommending in DRB that RUSSELL J. CAR- decision GARDENS, YORK, BONE of KEW NEW who was admitted to 1980, suspended the bar of this State in and who thereafter was practice from the Order of this filed November law Court time, suspended and who remains at this be disbarred for 8.4(b) (commission violating of a criminal act that reflects RPC considered notes option permit Commission’s choice of that which would the defense apply even when it is non-lesser included offense committing. Applying supposed he was the consistent throughout thread that runs discussions those involved drafting Code, our can the MPC and find intent to imperfect