In its long and vaunted history, the New Jersey Supreme Court has not only been at the vanguard of the law, with many of its precedent-setting decisions cited routinely in law school case books, but the court has, over many decades, been the principal protector of fundamental constitutional rights of this state’s citizens, interpreting the New Jersey Constitution to confer greater fundamental personal protections than exist under analogous provisions of the federal constitution. Our court has never been more important to this state’s citizens than in this past decade, one marked by a steady erosion of individual rights, with each passing decision of the United States Supreme Court.

If the criminal law decisions of the New Jersey Supreme Court’s past two terms are a harbinger of things to come, the court will soon mirror the United States Supreme Court, in that there is a clear institutional trend toward relatively narrow interpretations of individual rights. This past term the court decided a smaller number of criminal cases than in the past, and the number of cases reversed seems to be steadily shrinking. If the trend continues, New Jersey citizens may no longer be able to look to their state’s high court as the last protector of fundamental individual liberties.

The statistics this past term are remarkable. The court decided only 21 criminal cases. In prior years, the number has been higher, sometimes close to 30. Of the 21 criminal law decisions issued, a mere three resulted in convictions being reversed, one of the lowest numbers of reversals in memory. Three sentences were also reversed, two involving extended terms, and one requiring the trial court to consider certain mitigating factors that it had refused to consider. One case was before the court on an application for postconviction relief, but the court rejected the defendant’s construction of the law and remanded the case to the trial court for factual findings consistent with the court’s interpretation. In another, on appeal by the state, the court ruled that the spousal privilege had been properly invoked at the defendant’s trial. The remainder of the court’s rulings were in the state’s favor: nine convictions were affirmed; two convictions were reinstated; and two sentences were reinstated.

A significant number of the cases decided by the court, which currently has two vacancies, evidenced disagreement among the justices over whether certain issues should be decided by the court as a matter of law, or whether factual questions existed, requiring resolution by a jury. In every instance where such tension existed, the issue was resolved against the defendant. Three cases in particular illustrate instances of the court summarily deciding cases where issues were presented that arguably should have been decided by a jury.

State v. McDonald

One of the cases reflecting sharp disagreement over whether an issue was one of law, to be decided by the court, or one involving a material factual dispute, to be decided by a jury, arose in the context of whether a defendant, prior to sentencing, should have been permitted to retract his guilty plea. State v. McDonald, No. 067022 (N.J. July 23, 2012).

Defendant Barrington McDonald was indicted for second-degree assault by auto in a school zone, under N.J.S.A. 2C:12-1(c)(3)(a). He was also issued summonses for DWI (N.J.S.A. 39:4-50), driving with a suspended license (N.J.S.A. 39:3-40), DWI in a school zone (N.J.S.A. 39:4-50(g)(1)), reckless driving (N.J.S.A. 39:4-96), careless driving due to speed (N.J.S.A. 39:4-97) and unlicensed driving (N.J.S.A. 39:3-10).

The incident giving rise to the charges occurred a few hours after midnight on Jan. 14, 2007, when the defendant, while driving under the influence of alcohol and also driving while on the suspended list, struck and seriously injured a pedestrian, Robert Fields. The incident occurred near a parochial elementary school, Our Lady Star of the Sea Regional School. The school sat on a large parcel of property, where the parish church was located. The victim, Robert Fields, who was employed by the Tropicana Casino, was walking from the employee entrance to the casino’s front entrance when the defendant’s vehicle struck him. The defendant stated that Fields had walked halfway across the street and then stepped backwards, moving into the defendant’s lane. The defendant’s vehicle, at the time it struck Fields, was found to be moving in excess of the 25-mile-per-hour speed limit at the time of impact. Fields was thrown 89 feet to the sidewalk on the opposite side of the street. He was hospitalized for a week and treated for multiple fractures and head trauma. After the accident, the defendant’s blood-alcohol level was determined to be .19 percent. The police learned that the defendant’s New Jersey license had been suspended in 1994, and had never been restored. In addition, a North Carolina driver’s license issued to the defendant had expired more than one year before the accident.

On May 7, 2007, the defendant, represented by counsel, appeared in court and sought bail so that he could discuss his case with a different attorney. Two weeks later, on May 21, 2007, the defendant entered into a plea agreement with the state, and, on that same day, he appeared in court still represented by his original attorney. He agreed to plead to three charges: second-degree assault by auto in a school zone; DWI; and driving with a suspended license. The plea agreement provided that the defendant would be sentenced as if he had pled to a third-degree offense, and the state would recommend a sentence of three years in state prison.

When he appeared in court to enter his plea, the defendant advised the judge that he wished to plead guilty to the three charges. He was then asked questions relating to his plea. When asked whether he was guilty of driving a vehicle recklessly while intoxicated and “within a thousand feet of school property,” causing “serious bodily injury to Robert Fields,” the defendant responded “[y]es, I am.” The prosecutor followed up on the defendant’s response to the school zone question by asking the following:

PROSECUTOR: And, sir, you don’t dispute it was within a thousand feet of Our Lady Star of the Sea School, where the accident occurred?

DEFENDANT: I didn’t see it, but I might have missed it.

The trial judge accepted the defendant’s plea, stating that he was “satisfied the defendant has knowingly, intelligently and voluntarily waived his right to a trial by jury.” The judge further stated that, based upon the defendant’s testimony, “he is guilty, his pleas are accepted.” The defendant was released on his own recognizance pending sentencing. He thereafter retained new counsel, who obtained the court’s agreement to continue the defendant’s sentencing for one week.

On July 27, 2007, defense counsel alerted the court that the defendant might seek to withdraw his guilty plea. The defendant was next in court on Aug. 10, 2007. Prior to that appearance, the state produced a map as evidence that the defendant’s accident had occurred within 1,000 feet of school property. Thereafter, two continuances were granted to the defendant so he could investigate whether his accident occurred outside the 1,000-foot school zone requirement of N.J.S.A. 2C:12-1(c)(3)(a).

On Oct. 19, 2007, pursuant to Rule 3:21-1, the defendant filed a motion to withdraw his guilty plea because, despite concern he expressed to his original attorney about whether the location of the accident fell within the 1,000-foot school zone requirement of N.J.S.A. 2C:12-1(c)(3)(a), his original attorney failed to investigate the issue and to seek discovery. The defendant maintained that when he pled guilty to the school-zone offense, he had not known the exact distance between the site of his accident and the school, and that his plea was not entered into knowingly or with an adequate factual basis.

The trial court denied the defendant’s motion, finding that the plea had an adequate factual basis, and was entered into knowingly, intelligently and voluntarily. The trial court thereafter imposed a three-year prison term for assault by auto in a school zone, a consecutive 90-day term for DWI, and a consecutive 60-day term for driving while suspended. the defendant appealed.

The Appellate Division permitted the defendant to supplement the record with evidence that a 1,000-foot radius around the accident site included part of the complex owned and operated by the church, but excluded the school itself and its parking lot. Based upon the map and the accident location, the defendant contended that he did not violate N.J.S.A. 2C:12-1(c)(3)(a). The Appellate Division, applying State v. Slater, 198N.J. 145 (2009), affirmed the order of the trial court denying the defendant’s motion to withdraw his guilty plea. The panel held that the defendant had not established a colorable claim of innocence, had failed to identify a compelling reason to withdraw his plea, and, at the time his plea was entered, had provided the trial judge with a sufficient factual basis for the court to accept the plea. The panel, however, merged the DWI conviction into the conviction for second-degree assault by auto, and ordered a limited remand for consideration of whether the defendant should be able to withdraw his guilty plea to driving with a suspended license.

On appeal, Justice Patterson, writing for the majority, upheld the ruling of the Appellate Division. The court found that the “interests of justice” did not warrant an order permitting the defendant to withdraw his guilty plea to assault by auto in a school zone. The court found that the defendant failed to offer a colorable claim that he did not commit the offense and also failed to provide a credible excuse for failing to assert his defense prior to his plea.

Citing State v. Slater, 198 N.J. 145 (2009),the court noted that four factors must be considered and balanced in deciding motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of the defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the state or unfair advantage to the accused. The court noted that motions to withdraw a plea prior to sentencing are governed by the “interests of justice” standard set forth in Rule 3:9-3(e).

The first Slater factor, the court noted, focuses on the merits of the defendant’s defense, which requires determination of whether the defendant has presented facts supporting his assertion that he did not violate N.J.S.A. 2C:12-1(c)(3)(a). That statute, the court noted, provides that assault by auto is a second-degree crime “when serious bodily injury results” from the defendant’s DWI “on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property.” In construing the terms “school property” and “school purposes,” the objective, the court stated, is to determine and effectuate the Legislature’s intent. The court first looks to the statute’s plain language to determine its meaning. If the plain language is ambiguous, then the court examines secondary sources such as legislative history.

The court found that, consistent with the statute’s objective to ensure student safety, the plain language of N.J.S.A. 2C:12-1(c)(3)(a) does not limit “school property” to public schools or to property owned or leased by any specific category of educational institution. The court also found that the parish church owning the property and operating the school is an elementary education entity within the meaning of the statute. The school, the court ruled, constitutes “school property.” Finding that there is more than one plausible interpretation with regard to whether all or only a portion of the land at issue should be considered “school property used for school purposes,” the court referred to the legislative history of other statutes the court found relevant.

The court noted that N.J.S.A.2C:35-7, which provides enhanced penalties for illegal drug offenses committed within 1,000 feet of “school property used for school purposes,” was a statute containing language similar to N.J.S.A. 2C:12-1(c)(3)(a),the law defendant was charged with violating. The court noted that the Legislature, in its Official Commentary to N.J.S.A. 2C:35-7, stated that the 1,000-foot radius of “school property” extends “from the outermost boundary of the school grounds or campus, and not from the perimeter of the school building itself.” The legislature’s broad definition of the 1,000-foot requirement, the court ruled, applies with equal force to N.J.S.A. 2C:12-1(c)(3)(a). Broad construction of the requirement, the court found, furthers the Legislature’s goal of protecting students at all stages of the school day.

Applying its construction of the law to the facts before it, the court noted that the1,000-foot radius for purposes of N.J.S.A. 2C:12-1(c)(3)(a) would begin at the border of the “property on which the [s]chool is found,” not where the school building itself was located. Accordingly, the court found, the defendant cannot assert a colorable claim of innocence based on the location of his accident. Rejecting the defendant’s contention that the statute he was charged with violating does not apply to accidents occurring at night, because school is not then in session, the court ruled that N.J.S.A. 2C:12-1(c)(3)(a) applies at all times of the day and night. In light of its findings, the court found that the first Slater factor weighs against the withdrawal of the defendant’s guilty plea.

The court similarly found that the second Slater factor, whether the defendant has provided a credible excuse for failing to assert his defense prior to the guilty plea, weighed against the defendant. The court noted that the defendant was fully aware that he was charged with violating N.J.S.A. 2C:12-1(c)(3)(a) and was also aware of the identity of the school and where his accident occurred. The court then ruled that the third Slater factor, the existence of a plea agreement, was not of significance because that factor applies to the vast majority of criminal cases. The fourth Slater factor, whether withdrawal would result in unfair prejudice to the state or unfair advantage to the accused, weighed in the defendant’s favor because no showing had been made that withdrawal of the plea would cause either prejudice or unfair advantage.

The court then addressed Justice Albin’s dissent, which had been joined in by Judge Wefing, who was sitting temporarily on the court by designation. The dissent expressed the view that whether the accident occurred within the radius required by the statute constituted a factual issue for a jury to decide. Responding to the dissent, the court found that no factual issue existed because the Legislature had clearly instructed that the 1,000-foot radius extends from the outermost boundary of the school grounds. Because the accident took place within 1,000 feet of a portion of the property on which the school is located, the court ruled, no dispute exists as to whether the distance requirement was satisfied.

In so ruling, the court distinguished this case from State v. Munroe, 210 N.J. 429 (2012), also decided this past term, where Justice Albin authored the court’s unanimous opinion. Munroe was distinguishable, the court noted, because there the defendant had demonstrated a colorable claim of innocence within the meaning of Slater. By contrast, this defendant not only failed to present a colorable claim of innocence, but he also failed to provide a credible explanation for failing to assert his defense before his guilty plea. Under the circumstances, the court noted, the balancing of the Slater factors supports affirming the decision of the Appellate Division.

The court then rejected the defendant’s remaining allegations. The court ruled that the trial court had established an adequate factual basis for recklessness as an element of assault by auto and for driving while suspended. The court also found that the two errors addressed by the Appellate Division did not render the defendant’s entire plea defective or require that it be vacated. It is routine, the court noted, for appellate courts, without vacating pleas, to merge convictions on appeal following a guilty plea that is the result of a plea bargain. By having his DWI and assault by auto convictions merged, the court noted, defendant benefited. The court also found no fault with the remand ordered by the Appellate Division because it was properly limited to the offense of driving while suspended and did not affect the defendant’s other convictions.

Finally, the court noted, the record was inadequate for it to review the defendant’s claim of ineffective assistance of counsel. That claim, the court noted, should be determined in a post-conviction relief proceeding.

In a strongly-worded dissent, Justice Albin stated that the court’s ruling wrongfully denied the defendant the opportunity to withdraw his plea of guilty to a crime he may not have committed. To reach the result it did, the justice noted, the majority had “cast aside” principles of law reaffirmed only weeks before in Munroe. Munroe had been authored by Albin, who was writing for a unanimous court. In his dissent, the justice observed that Munroe “merely echoed” fundamental tenets of jurisprudence already governing the withdrawal of pleas. The applicable principles, the justice noted, had been enunciated in Slater.

Citing Munroe, Justice Albin criticized the majority for “rush[ing] to uphold defendant’s conviction,” and, in so doing, ignoring that: (1) “courts are to exercise their discretion liberally to allow plea withdrawals” before sentence, and the “scales should usually tip in favor of defendant” in a close case; (2) courts must be “satisfied from the lips of the defendant that he committed the acts which constitute the crime”; (3) the defendant need only present “specific, potentially plausible facts” of his innocence, rather than persuade the motion judge that he has “a winning argument”; and (4) “the ultimate goal is to ensure that legitimate disputes about the guilt or innocence of a criminal defendant are decided by a jury.” (Internal quotation marks and citations omitted). The justice further criticized the majority for evaluating the validity of the defendant’s reasons for his plea withdrawal with the very “skepticism” that the court had condemned in both Munroe and Slater.

Justice Albin noted that the defendant had sought to withdraw his plea for a “simple reason”: an essential element of the crime to which he pled guilty had not been established at the plea hearing and remained in doubt at the time of sentencing. The defendant, the justice pointed out, had pled guilty to causing serious bodily injury while driving while under the influence within 1,000 feet of school property (DWI assault by auto). N.J.S.A. 2C:12-1(c)(3)(a). Yet during the defendant’s plea allocution, Justice Albin stated, the defendant failed to provide the required factual basis that the accident actually occurred within a school zone. Citing Munroe, the justice noted that asking the defendant whether he was guilty of the crime charged, is not the same as eliciting the factual underpinnings for the plea. The justice noted that there was no stipulation by the defendant or his attorney that the accident occurred within 1,000 feet of school property, nor had the state ever introduced a map at the plea hearing that, with the defendant’s acquiescence, would have satisfied the school-zone element.

It was only after the defendant entered his plea, the justice stated, that the state supplied a school-zone map. Further, the justice observed, the defendant himself, before sentencing, produced a map contesting that the offense occurred within 1,000 feet of school property. The justice noted that even the trial judge conceded that there was “no definitive answer” whether the accident occurred within a school zone. That issue, the trial judge stated, would “likely have to be litigated based on the respective positions” of the state and the defendant. Justice Albin was critical that the trial judge, though recognizing the existence of a factual issue, denied the defendant his right to a jury trial to resolve that issue and instead proceeded to sentence the defendant to a term of imprisonment.

Excoriating the majority’s misuse of legislative history, the justice stated that the court’s “detailed recitation of the legislative history of N.J.S.A. 2C:12-1(c)(3)(a) does not alter one immutable truth: whether the accident actually occurred within a school zone is a matter for a jury.” Nothing in the “statute, its legislative history, or our precedent supports” the majority’s judicial expansion of a school zone. Justice Albin noted that while the accident occurred within 1,000 feet of the entire church complex, it occurred approximately 1,048 feet from the outermost edge of the school’s parking lot. Referring to the model jury charge in school zone cases under N.J.S.A. 2C:35-7, the court noted that trial courts are to charge the jury if a factual issue arises over whether property in question is property used for school purposes. Under the charge, juries are instructed: “The term school property means any property which is used for school purposes and is owned by or leased to an elementary school, secondary school or school board. The 1,000-feet zone extends from the outermost boundary of the school property and not from the school building itself.” Model Jury Charge (Criminal), Possession with Intent to Distribute Controlled Dangerous Substance Near or On School Property (January 2008). When an issue is raised whether “the property was used for school purposes,” the jury must be further instructed that:

In addition to determining whether the property is school property, you must determine the purpose for which it is used. You must decide whether the property is regularly, consistently, and actually used for school purposes, and whether the property’s appearance would give an objectively reasonable person reason to know that it was used … for school purposes.

Under the foregoing, the justice reasoned, it was for a jury to decide if the outermost edge of the church complex was church property, not “school property used for school purposes.” Because the defendant offered credible evidence that the accident may not have occurred within 1,000 feet of school property, he, in Justice Albin’s view, presented a “colorable claim of innocence.”

The justice also noted that the defendant presented a legitimate, nonpretextual reason for withdrawing his plea. He disputed that the offense occurred within 1,000 feet of a school zone, which is an essential element of the crime of DWI assault by auto. The plea colloquy, the justice noted, did not contradict the defendant’s claim, which was evident from not only the colloquy itself, but from the trial judge’s recognition that there was “no definitive answer” in the record as to whether the offense occurred within a school zone. Further, the justice noted, the State produced no map at the time of the plea to demonstrate otherwise. The fact that the defendant’s original attorney failed to perform his due diligence to investigate whether the offense fell within a school zone, Justice Albin reasoned, provides sound explanation as to why the defense was overlooked. For the defendant to pursue postconviction relief on the grounds of ineffective assistance of counsel, the justice declared, would serve no purpose because, by the time relief is granted, the defendant will have served a prison sentence for a crime he may not have committed. Such an approach, the justice noted, would convert the “interests of justice standard” into an “instrument of injustice.”

Justice Albin also noted that the defendant, having made a plausible showing of potential innocence, cannot be denied relief solely because his guilty plea was entered pursuant to an agreement with the state. The vast majority of cases, the justice noted, as did the majority opinion, are resolved through plea agreements.

Lastly, the justice noted, as did the majority, that permitting the defendant to withdraw his plea would not unfairly prejudice the state. The plea had been entered, Justice Albin noted, on May 21, 2007, and the original sentencing date was scheduled for July 20, 2007.

Finding that a balancing of the Slater factors weighed in the defendant’s favor, the justice concluded that the decision of the majority “will leave the bench and bar wondering whether the four factors enunciated in Slater are so malleable that any desired result can be achieved.” “Most disturbing of all,” the justice stated, “is that the majority, through the guise of statutory interpretation, plays the role of fact-finder — conclusively resolving against defendant a material issue of fact.”

State v. Galicia

A similar dispute emerged between the majority and dissent in State v. Galicia, 210 N.J. 364 (2012). Justice Patterson, who authored the majority decision in the school-zone case, McDonald, also authored the majority opinion in Galicia. Justice Albin again dissented, but this time alone. At issue was whether the evidence adduced at trial required the trial judge to direct the jury to consider, as a defense to murder, the statutory defense of passion/provocationN.J.S.A. 2C:11-4(b)(2).The statute provides that the crime of murder is reduced to voluntary manslaughter if the homicide was “committed in the heat of passion resulting from a reasonable provocation.”

The facts described by the Galicia majority are as follows. The victim, a young man named Julio Colon, who had recently moved from Vineland to Newark, was approached, on May 2, 2004, by two men with whom he previously had romantic involvement: Hector Cordero and defendant Reynaldo Galicia. Cordero and Galicia had traveled from Vineland to Newark to confront Colon about a sport utility vehicle (SUV) that he had borrowed but failed to return. The three men met, with Cordero imploring Colon to renew their relationship. Colon was begged by both men to return to Vineland with them, but he refused, leading to an argument, which swiftly turned violent.

The three men fought over the keys to the SUV, leading to Colon’s exchanging punches and kicks with Cordero and the defendant. The defendant obtained the keys, opened the driver’s side door and took the driver’s seat, while Cordero took the passenger’s seat. The defendant then started the car, twice driving toward Colon, prompting him to climb onto the hood of the car and bang his fists on the window. With Colon clinging to the car, the defendant accelerated and drove several blocks, running a stop sign, and thereafter abruptly stopping, causing Colon to fall from the hood to the pavement. The defendant and Cordero immediately took Colon to a hospital, where he was admitted in critical condition in a coma. Colon died after a week on life support.

The defendant and Cordero were arrested. The defendant was indicted for purposeful or knowing murder, felony murder, first-degree robbery, second-degree aggravated assault, second-degree conspiracy to commit robbery, and two charges arising from his alleged use of his vehicle as a weapon. The charges against the defendant were severed from those against Cordero. The trial itself did not much turn upon passion/provocation and self-defense, yet the state requested a charge on passion/provocation, while simultaneously expressing the view that the record contained insufficient basis to establish that such a charge was warranted. The defendant opposed the court’s giving a charge on passion/provocation because it would confuse the jury. The trial court nevertheless charged the jury with respect to the passion/provocation statute. Neither the prosecution nor the defense requested a charge regarding self-defense. The defendant’s attorney, in summation, argued that the passion/provocation issue was “not in the case.” The prosecutor similarly argued in summation that a passion/provocation issue had not been presented because the incident was not “sudden” and nothing occurred prior to Colon’s falling from the car that would cause the defendant to be impassioned. Justification by self-defense was not addressed in summation by the defendant’s attorney, but the defense was raised and refuted briefly in the summation of the prosecution.

In its instructions on the murder charge, the trial court charged the jury on the defense of passion/provocation. The verdict sheet, however, suggested that the jury would only reach the issue of passion/provocation if it found the defendant guilty of murder. Before the jury deliberated, the prosecutor objected to this portion of the verdict form. Defense counsel agreed, but the trial court did not rule on the objections, nor did it correct the verdict sheet.

The defendant was convicted of aggravated manslaughter, second-degree aggravated assault, disorderly persons theft by unlawful taking, and two weapons charges. He appealed his conviction, which the Appellate Division affirmed. In its ruling, the Appellate Division rejected the defendant’s challenge to State v. Grunow, 102 N.J. 133 (1986), which held that passion/provocation can mitigate murder, but not aggravated manslaughter. The appellate court also concluded that the trial court’s instruction to the jury on passion provocation was accurate, thereby neutralizing and rendering harmless the mistake on the verdict sheet regarding the defense of passion/provocation. Finally, the appellate court rejected the defendant’s claim that the trial court should have, sua sponte, charged the jury on self-defense.

The Supreme Court affirmed the defendant’s conviction, holding that the record did not support the trial court’s issuance of a passion/provocation charge to the jury. In so ruling, the court noted that the New Jersey Criminal Code recognizes three forms of criminal homicide: murder, manslaughter and death by auto. N.J.S.A. 2C:11-2(b). Manslaughter can be reckless, involuntary or voluntary. Within the category of involuntary manslaughter, the code separately addresses aggravated and reckless manslaughter. N.J.S.A. 2C:11-4. Reckless manslaughter requires only “reckless” conduct causing the victim’s death, imposing a lesser burden on the state than murder, which includes among its elements a “purposely or knowingly” mens rea. Involuntary manslaughter can constitute aggravated manslaughter when the actor “recklessly causes death under circumstances manifesting extreme indifference to human life.” N.J.S.A. 2C:11-4(a)(1). By contrast, the court noted, voluntary manslaughter, also known as “passion/ provocation manslaughter,” occurs when a homicide which would otherwise be murder under Section 2C:11-3, other than felony murder, is “committed in the heat of passion resulting from a reasonable provocation.” N.J.S.A. 2C:11-4(b)(2). The Legislature, the court noted, has made passion/provocation a defense to a murder charge, but not manslaughter. N.J.S.A. 2C:11-4(b)(2).

Finding that the statutory language of N.J.S.A. 2C:11-4(b)(2) limited the defense of passion/provocation to charges of murder, the court refused to reconsider Grunow, which held that the passion/provocation defense was unavailable on a manslaughter charge. In so holding, the court explicitly rejected the defendant’s contention that the applicability of passion/provocation to murder, yet not manslaughter, creates a logical absurdity and reflects a legislative oversight, compelling that the statutory defense be construed to apply equally to manslaughter and murder charges. Accordingly, the court ruled, even if the facts at trial were deemed sufficient to justify a charge on the passion/provocation defense, the defendant’s challenge to the court’s construction in Grunow of N.J.S.A. 2C:11-4(b)(2), and to the statute’s constitutionality, would not warrant reversal of his conviction.

Turning to the factual record, the court noted that although the defendant and Colon had been romantically involved, nothing in the record suggested that the defendant operated his car in a jealous rage or in the “heat of passion.” The two “objective elements” of passion/provocation — reasonable and adequate provocation and an absence of adequate cooling-off time — were not established by the facts at trial, the court ruled, noting that neither party took the position in opening, in summation, in the examination of witnesses or in the charge conference, that the issue of passion/provocation was part of the case. Accordingly, the court noted, although the trial court charged the jury on the defense of passion/provocation, its decision to issue the charge was not justified by the trial evidence.

Turning its attention to the verdict sheet, the court noted that the verdict sheet, in conjunction with the jury charges, constitutes the trial court’s direction to the jury. When there is an error in a verdict sheet but the trial court’s charge has clarified the legal standard for the jury to follow, the error, the court observed, may be deemed harmless. The court, disagreeing with the Appellate Division, found that there was legal error in the verdict sheet because the inaccuracy contained in it had the potential to mislead and was not easily rectified by the jury charge. Although the court found that the Appellate Division was wrong in ruling that the verdict sheet’s deficiency did not constitute error, the court ruled that the error was “harmless” because it did not deprive the defendant of a fair trial.

Finally, the court rejected the defendant’s contention that the trial judge had an obligation to sua sponte charge the jury on self-defense. For such a charge to be warranted, the court noted, the statute requires the actor to have an “actual, honest, reasonable belief” in the necessity of using force. The code circumscribes, the court further noted, the justification of self-defense when the actor elects to use deadly force. The defendant’s use of the automobile, the court ruled, constituted an exercise of deadly force: the defendant drove the car directly toward a person, traveled several blocks and disregarded stop signs while the person clung to the hood of the car, and then accelerated the car and suddenly applied the brakes, causing the person to fall off the hood. Deadly force had been used by the defendant, the court noted, when he was in minimal, if any danger, and had the option to drive away from the scene. Accordingly, the court ruled, the defendant was not entitled to invoke self-defense as justification for his conduct.

In another strongly worded dissent, Justice Albin accused the majority of turning the appropriate legal standard on its head, viewing the evidence in the light most unfavorable to defendant, rather than considering whether a rational juror — viewing the evidence in the light most favorable to a passion/provocation manslaughter defense — could have returned a verdict of passion/provocation manslaughter.

Viewed through the “appropriate legal lens,” the justice noted that the facts present a classic case of passion/provocation manslaughter. In deciding whether “to instruct a jury on passion/provocation manslaughter,” Justice Albin noted, “a trial court should view the situation in the light most favorable to the defendant.” State v. Mauricio, 117 N.J. 402, 411 (1990). The justice then recited facts in the record that were not contained in the majority’s decision:

1) Colon moved into the defendant’s family home in 2004, when the two began a romantic relationship;

2) The defendant purchased a car for Colon, apparently on credit, with the defendant keeping title to the vehicle in his name. When Colon was unable to pay for the car and insurance, the defendant asked him to stop driving the car;

3) Cordero was Colon’s ex-lover and was jealous of the defendant, who told Cordero he was Colon’s new lover;

4) The defendant learned that Colon had borrowed an SUV from his former employer, who was going to call the police because Colon had not returned his car;

5) The defendant and Cordero went to find Colon to tell him to return the SUV or be in jeopardy of arrest;

6) The defendant suspected that Colon was cheating on him and that he had gone to the Newark apartment of his friend, Irwin Castro. The defendant and Cordero drove to Newark and rang the bell to Castro’s apartment, which was answered by another man, Edward James, who claimed Colon was not in the apartment;

7) The defendant and Cordero went outside. Cordero then stood outside the building he believed Colon was in, yelling “Julio, Julio, I know you’re there. I know you’re there. Please come out”;

8) Colon came out, and threatened to call the police if Cordero did not stop disturbing the neighborhood;

9) The defendant implored Cordero to leave to avoid trouble, and thereafter Colon and Cordero apologized to one another;

10) The defendant and Cordero drove away and then spotted the SUV that Colon had borrowed. They parked behind the vehicle and Cordero opened an unlocked door and carried out some of Colon’s belongings, including a cell phone the defendant had given Colon, a yellow rose and a diamond ring. The defendant said he wanted to go home, but Cordero begged him to “just wait for a few more minutes” to see if Colon would return to the SUV. The defendant relented and parked his car. Both he and Cordero then began to cry. As they were about to depart, Colon, Castro and James were seen by the defendant and Cordero walking down the street;

11) Cordero got out of the car and pleaded with Colon, “Don’t do this, don’t do this. Please come home. Please come home. Please come home with me.” Colon told him, “[I]t’s over”;

12) As Colon got into the driver’s seat of the SUV and turned the ignition on, Cordero climbed into the passenger side. Cordero then wrestled Colon for the keys, screaming, “Please don’t do this, please don’t do this.” James then threatened to call 9-1-1.

13) The defendant left his car, approached the SUV and begged Colon to talk to him. Colon kicked the defendant in the stomach and chest and put him in a headlock. Cordero freed the defendant from Colon’s grasp;

14) The defendant — beaten, distressed and emotionally wounded — stated he “had enough” and was going home;

15) The defendant opened the door to his car and got in on the driver’s side. Cordero was already seated. The doors were then locked. As the defendant started the car, Colon leapt on the hood, punched the windshield and attempted to break the windshield wipers. Cordero shouted to the defendant to “go, go, go, go.” Panicked and in shock, the defendant began driving, with Colon on the hood, hanging onto the wipers while hammering the windshield with his hands;

16) As the defendant drove, Colon punched the windshield so hard that the defendant feared Colon “might break through the glass”;

17) Colon started falling off the hood, but managed to pull himself back on and, kneeling on all fours, continued to pound the windshield. The defendant was confused and panicked from Colon’s assault on the windshield and Cordero’s command to “go, go, go, go”;

18) The defendant eventually brought the car to a stop that was sufficiently abrupt for Colon to fall off the hood and strike his head on the pavement. The defendant, in shock, stated that he “never thought … that [Colon] would get hurt”;

19) The defendant immediately got out of the car and began screaming, “Oh my God. Oh my God. Please help me. Please help me”; and

20) The defendant and Cordero lifted Colon into the car and rushed him to the nearest hospital. Seven days later, Colon died from his injuries.

Justice Albin, after citing the foregoing facts, many of which are not set forth in the majority’s decision, stated that the “combustible, emotional confrontation between defendant, Cordero, and Colon — sparked by spurned love and jealousy and fueled further by the physical blows exchanged on the street — set in motion the crazed car ride that led to Colon’s unfortunate death.” “A reasonable jury,” the justice stated, “could believe that when Colon jumped onto the hood of the car and began pummeling the windshield with his fists, defendant reacted in the heat of passion, and without adequate time to cool off.” “This is the evidence in the record,” Justice Albin noted, which, if believed by a jury, would support a verdict of passion/provocation manslaughter.” It was this very testimony, the justice stated, that caused the trial judge to charge the jury on passion/provocation manslaughter. The state, having sought the passion/provocation charge, should have been estopped on appeal from arguing that the charge was erroneously given.

The justice concluded that there was ample support in the record for the charge to be given, that the “fatally flawed” verdict sheet was “clearly capable of producing an unjust result,” R. 2:10-2, and that the judgment of conviction entered against the defendant should be reversed. Justice Albin also expressed the view that Grunow was wrongly decided and that the defense of passion/provocation should apply not only to a charge of murder, but to a charge of manslaughter as well.

State v. Singleton

The third case imposing a limitation upon what the jury was permitted to consider was State v. Singleton, No. 067756 (N.J. July 30, 2012). In Singleton, Justice LaVecchia authored the majority decision, with Justice Hoens writing a dissent that was joined in by Justice Albin. At issue was whether the judge should have, sua sponte, charged the jury on the “deific-command” variant of the insanity charge, which adds language to the charge separating the defendant’s ability to appreciate legal wrong from moral wrong based on “deific commands” to kill. State v. Worlock, 117 N.J. 596 (1990). The Appellate Division held that the trial judge erred by not giving the charge. The Supreme Court reversed.

On Sept. 13, 2005, the defendant shot his girlfriend, Michelle Cazan, four times. He also stabbed her four times because he “didn’t want her to suffer.” Within minutes she was dead. The defendant took the knife and went to his friend’s home, where he washed up, changed his clothes, drank alcohol and smoked marijuana. The next morning, the defendant threw the knife into a canal and went to his victim’s house, where he retrieved his gun and attempted to clean the crime scene. The defendant initially fled the area, but returned home and was subsequently arrested. In explaining his killing of Cazan to law enforcement, the defendant indicated that he was angry because of the Bible and that the devil and God were involved. He was charged with first-degree murder and other related offenses. The defendant did not dispute that he killed Cazan but relied on the defense of legal insanity.

Evidence was adduced at trial that the defendant had developed a set of delusional religious beliefs derived from his interpretation of scripture. According to the defendant, he received messages or communications from God while asleep and felt a general obligation to kill sinners who did not comport themselves in accordance with his beliefs about God’s expectations, once he explained those expectations to them. Although the defendant believed that there were sinners in his family, he chose not to kill them. The defendant was diagnosed by his expert and the state’s with a schizoaffective disorder that causes hallucinatory experiences and delusional perceptions. The defendant’s expert testified that the defendant believed he was supposed to kill Cazan because God was telling him to do it and he had to follow God’s word.

The state’s expert emphasized that the defendant admitted to not hearing voices at the time of the killing, and he opined that the defendant was merely acting on his interpretation of what God wanted. According to the state’s expert, the defendant stated that he only heard the voices when sleeping, and that the communications were not actual voices, but rather comprised subconscious thoughts. The defendant also denied hearing any voices on the night of the incident. The state’s expert, citing the foregoing conversations with the defendant, opined that the defendant knew what he was doing was wrong. The state’s expert also cited other reasons for reaching his conclusion: the defendant had a history of violence toward women; he stabbed his victim to put her out of her misery; he drank alcohol and smoked marijuana afterward; the results of forensic testing reflected that the defendant’s contention that God made him kill his victim reflected a deliberate attempt to make himself look better; and that the defendant intentionally decided to evade the police.

The court and all parties agreed to use the model jury charge for the insanity defense. The defense was rejected by the jury, which convicted the defendant of murder and the other charges. In moving for a new trial, the defendant claimed for the first time that the jury should have been provided with the deific-command variant of the insanity charge, which was recognized in Worlock. After the trial court denied his motion, the defendant appealed. The Appellate Division reversed the conviction and ordered a new trial. 418 N.J. Super. 177 (App. Div. 2011). The panel held that the defendant had presented sufficient evidence at trial to have required the trial court, sua sponte, to provide a deific-command variant to the jury charge.

The Supreme Court reversed the Appellate Division’s decision, holding that the trial court did not commit plain error when it failed to give, sua sponte, the deific-command variant of the insanity charge that was approved of in Worlock. The charge would have been inappropriate, the court ruled, because the evidence adduced at trial does not clearly indicate that the defendant killed Cazan as a result of a deific command.

The court began its analysis noting that the test for legal insanity is set forth under N.J.S.A. 2C:4-1, which states that a person is insane if because of a “disease of the mind,” “he did not know what he was doing was wrong.” The court observed that “wrong” is susceptible to multiple interpretations and may include legal as well moral wrongs. In Worlock, the court noted, it recognized that, in the vast majority of cases, the legal and moral wrong are coextensive: if the defendant is capable of understanding that he was acting contrary to law, he would also have sufficient capacity to understand that he was acting contrary to the morals of society. Because Worlock recognized that legal and moral wrongs are typically coextensive, the decision stated that it would be almost always unnecessary for the court to explain to the jury that “wrong” encompasses both legal and moral wrongs.

The court noted that Worlock also recognized, however, that in the rare case in which a defendant is able to recognize that his actions are legally wrong but is nonetheless incapable of understanding that they are morally wrong, the trial court should instruct the jury that “wrong” encompasses both legal wrong and moral wrong. For a modified charge to be warranted under Worlock, the court noted, a defendant must show that, at the time he committed the crime, he believed that his actions were morally right under prevailing social norms, not just his own idiosyncratic code of morality. The court noted that Worlock found only one “generally recognized” circumstance in which a defendant could justifiably believe that although he acted contrary to law, society would consider his actions to have been morally right, thereby justifying a jury charge defining the term wrong. That would be when “the defendant contends that he or she knowingly killed another in obedience to a command from God.” The court pointed to State v. Winder, 200 N.J. 231 (2009), as re-emphasizing that, outside of the “deific-command delusion,” situations in which a defendant could understand that his actions were illegal yet be incapable of understanding that society would disapprove of them are exceedingly rare.

Stare decisis and related principles of law, the court noted, compel that it not abandon Worlock’s recognition of a deific-command exception to the general insanity-defense charge. Nevertheless, the court noted, because the defendant failed to object to the use of the model jury charge, the issue of whether the trial court erred in failing to instruct the jury sua sponte on the Worlock variation of the insanity defense, subjected the issue to plain-error analysis. The only time a court must give a jury charge that was not requested, the court noted, is when the evidence clearly indicates the appropriateness of the charge.

Applying the law to the facts, the court concluded that the defendant was not entitled to a Worlock charge because the evidence did not clearly indicate that he failed to appreciate that killing Cazan was contrary to society’s morals. The Worlock variation, the court stated, is not available to all those who develop idiosyncratic moral compulsions from interpreting religious material. Were that all that was required in order to constitute a deific “command,” the court noted, then acting pursuant to any such personal belief system would qualify as lack of knowledge of having committed a “moral” wrong, and a defendant would not have to show that he believed that society would not objectively disapprove of the action as morally wrong. The defendant’s personal belief system, the court noted, was based on his own interpretation of scripture, and was fortified through dreams through which the defendant believed that God was communicating with him. The defendant’s belief that he had a “right to kill” certain sinners was not, the court ruled, the equivalent of a command from God to kill. Further, the court noted, the defendant had demonstrated that he had the ability to exercise his own free will and to resist God’s teachings by refraining from killing members of his family, though he believed them to be sinners. The defendant also deliberately chose not to kill anyone to whom he had not first explained his religious beliefs. The defendant’s inconsistent application of “God’s will” and the concomitant deific desire that he kill sinners, the court ruled, reflect the defendant’s awareness of an objective societal disapproval of his personal religious belief system.

The court also found that the defendant was not entitled to a Worlock charge because the evidence did not clearly indicate that he was acting pursuant to a delusional command at the time of the killing. A Worlock charge is available, the court noted, only when a perceived divine command overcomes a defendant’s ability to be conscious of society’s law and mores disapproving of that command. There is a necessary temporal proximity, the court observed, between the overbearing of the defendant’s will by God’s command and the action for which the defendant is charged. The defendant, the court noted, admitted that he never heard a voice or saw a vision that commanded him to kill Cazan when he committed the killing. Isolated references to voices and to communication with God through scripture and in dreams, the court ruled, are not the equivalent of a command from God, at the time of the killing, and they therefore constitute insufficient proof that the defendant was deprived of the ability to understand that society deemed his action morally wrong.

The court reversed the judgment of the Appellate Division and remanded the case to the court for consideration of the defendant’s remaining claims of error.

Justice Hoens, in a strong dissent joined by Justice Albin, stated that the facts and expert testimony adduced at trial required that the deific-command charge given pursuant to the court’s decision in Worlock, 117 N.J. 596 (1990). Criticizing the majority, Justice Hoens stated:

Indeed, it is only by redefining the meaning of Worlock’s deific command variation on the insanity defense, by imposing a new and exceedingly narrow view of the type of command that will qualify for that defense, by altering our previously-accepted notion of the difference between a true deific command and acts based on a personal moral code, and by ignoring the abundant evidence adduced at trial through fact and expert testimony in support of the conclusion that defendant fit within the traditional bounds of the deific command defense, that the majority can conclude that the failure to give the charge sua sponte did not amount to reversible error. In adopting this approach, the majority has created a test so narrow as to be essentially non-existent. It is, therefore, a new test that stands in clear disregard of the statutory definition of insanity, that is contrary to our previous decisions explaining the sources from which that statute was drawn and that is at odds with both religious practices and psychiatry.

Justice Hoens, continuing her dissent, stated her fundamental disagreement with the reasoning of the majority, noting:

[T]he majority fails to recognize that the issue presented in Worlock, as to which the deific command discussion was but a small component, was nothing less than this Court’s clear articulation of the fundamental basis upon which we, and our Legislature, have embraced a definition of insanity that includes both legal and moral wrong. …

[T]he majority overemphasizes the confined focus that this Court had in the more recent Winder decision, implying that Winder forged new ground. In fact, this Court in Winder merely recognized that a defendant who acts based on a personal moral code cannot claim the benefit of the deific command defense that we authorized in Worlock. The defendant in Winder made little effort to suggest that he acted pursuant to a deific command. Rather, his defense was that there were “other delusion-based exceptions” that Worlock suggested might be available and for which he qualified;

(Citations omitted.)

Justice Hoens went on to note that “the majority’s analysis of the record today alters the distinction we recognized and applied both in Winder and in Worlock between defendants who respond to true deific commands and those whose criminal acts are instead motivated by adherence to a personal moral code.”

She further stated that the majority “redefines Worlock and Winder to suit the current purpose … by altering the meaning of deific command so that it means one thing and one thing only, namely a direct, apparently verbally transmitted, command from God to do a specific act that the defendant then cannot help himself from carrying out.” Under the majority’s decision, Justice Hoens noted, “only a booming voice from heaven, presumably admitting of only a singular direction, will meet the test for deific command. That constricted version of the test serves only to substitute as part of the fabric of our law an exceedingly narrow view of religious traditions found only in the cinema.”

Finally, Justice Hoens wrote that, rather than reviewing the evidence in the record in accordance with the court’s usual principle of whether there is enough evidence to require a sua sponte jury charge, the majority “proceeds instead to draw its own conclusions about the result it would have reached about whether defendant was insane. We have held [in Walker] that the trial court is obliged to charge a jury sua sponte ‘only when the evidence clearly indicates the appropriateness of such a charge[.]‘”

The justice noted that what she found most troubling is that articulation of the sort of command that the majority now finds will define the Worlock variant on the insanity defense is sadly lacking in an understanding of either religion or psychiatry. She then criticized the majority’s failure to apply the appropriate standard to determining whether a charge should have been issued by the court sua sponte:

Utilizing our well-established test, the question is whether the evidence in the record “clearly indicates the appropriateness” of the Worlock charge. Tested in accordance with that standard, rather than tested in accordance with the majority’s approach of viewing the evidence through the lens of its new definition of the contours of the deific command variation of insanity, one can only conclude that the substantial evidence concerning defendant’s behavior, beliefs and rationale sufficed.

Justice Hoens, concluded that the court had improperly substituted itself as the trier of fact. She noted that the “fundamental error of the majority’s analysis is that it tries to make rational sense out of what in the end is clear evidence of a disordered and delusional mind.” The justice finally observed: “Mistaking a few glimmers of lucidity or perhaps some sane behaviors for an organized thought process, the majority finds so little evidence of the deific command that it deprives defendant of the defense entirely. In doing so, it inappropriately substitutes its view for that of the finder of fact.” •