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Appellate courts properly consider whether the evidence presented at trial provides a rational basis for a conviction on a given charge, either in the context of harmless error, or in the setting of a dispute as to whether a trial court should have instructed the jury, at the defendant's request, as to a lesser-included offense or other issues. Nothing in that inquiry -- a legal determination -- constitutes an encroachment upon the jury's exclusive province as the factfinder. To the contrary, that analysis is central to the question whether an error is clearly capable of producing an unjust result.
Cuff’s convictions and sentence relate to six incidents: (1) the June 24, 2010 armed robbery of a Cherry Hill resident in his home, where the victim was left with his hands tied behind his back and his ankles tied together; (2) the February 28, 2011 armed robbery of a Cherry Hill residence after which the parents -- who returned home during the robbery -- and their thirteen- and fourteen-year-old daughters -- who had been tied up for roughly an hour before their parents returned -- were left with their hands tied behind their backs; (3) the March 3, 2011 armed robbery of a Winslow Township man in front of his home; (4) the March 29, 2011 flight from and apprehension by police officers of a man who fled a stolen car; (5) the April 3, 2011 robbery of a family in Gloucester Township, after which a man and his fiancée, daughter, and son were left with their hands tied; and (6) the May 14, 2011 robbery of a man and woman in their home in Sicklerville. Cuff was charged with fifty-five offenses, including eleven counts of first-degree kidnapping relating to four of the incidents. He was tried before a jury over twelve days. At the close of evidence, the trial court conferred with counsel and prepared a jury charge. The court read the charge to the jury and sent the written instructions into the jury room for use during deliberations. The jury charge addressed the jury's obligation to consider not only charges set forth in the indictment, but also lesser-included offenses as instructed by the court. In the charge, the trial court addressed the eleven charges of first-degree kidnapping pending against defendant. The court set forth the elements of the first-degree offense, including the element that defendant did not "release [the victim] unharmed and in a safe place prior to apprehension." Tracking the pertinent Model Jury Charges, the trial court also instructed the jury about three lesser-included offenses: second-degree kidnapping, third-degree criminal restraint, and the disorderly persons offense of false imprisonment. The verdict sheet provided spaces for the jury to record its verdict as to first-degree kidnapping, third-degree criminal restraint, and the disorderly persons offense of false imprisonment, as well as the other charges pending against defendant. It did not, however, include a space for the jury to determine whether defendant was guilty or not guilty of second-degree kidnapping. Defendant did not object to the verdict sheet. During deliberations, the jury asked the trial court, "[i]f applicable, how do we denote second-degree on a charge in the verdict book?" After conferring with counsel, the court instructed, "[y]ou answer the questions as they are posed on the verdict sheet. . . . Each individual question as posed." The jury convicted defendant of nineteen charges -- sixteen of the counts charged in the indictment and three lesser-included offenses. The jury convicted defendant of three counts of first-degree kidnapping as to the father and the two daughters from the February 28, 2011 incident in Cherry Hill. The jury acquitted defendant of the other kidnapping charges. The trial court sentenced defendant. Invoking State v. Yarbough, 100 N.J. 627, 643-44, 498 A.2d 1239 (1985), the court determined both that certain sentences relating to different criminal episodes should run consecutively and that certain sentences arising from crimes committed in the same criminal episodes should run consecutively. The Appellate Division affirmed the trial court's determinations on the two issues relevant to this appeal: the omission of a reference to second-degree kidnapping on the verdict sheet; and the imposition of consecutive sentences.
Did the trial court err in not including the charge of second-degree kidnapping from the verdict sheet?
The Supreme Court of New Jersey recognized the importance of the verdict sheet as "an essential component" of the trial court's "road map" for the jury's deliberations. It appreciated that "[j]urors are likely to refer, and refer often, to the directions on the verdict form.” Thus, "[it] encourage completeness and consistency in the preparation of verdict sheets." The trial court's instructions to the jury, however, serve as the jury's primary guide as it considers the charges and the evidence. Thus, "[w]here we conclude that the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where we also find that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless." As in Galicia, there was no basis in this case for a finding of plain error. As it deliberated, the jury had the trial court's precise and accurate explanation of the first-degree and second-degree kidnapping standards -- not only as verbally delivered in court, but in written form in the jury room. Those instructions clearly directed the jury not to consider the lesser-included offenses of the charged count of first-degree kidnapping -- second-degree kidnapping, criminal restraint, and false imprisonment -- unless it found defendant not guilty of the first-degree offense. The jury clearly understood that it could acquit defendant of first-degree offenses and consider lesser-included offenses; indeed, with respect to eight other first-degree kidnapping counts, it either convicted defendant of lesser-included offenses or acquitted him entirely. As to the kidnapping charges involving the father and his two daughters in the February 28, 2011 incident in Cherry Hill, however, the jury decided that the State had met its burden to prove each element of the first-degree offense. Just as the evidence in Galicia did not provide a rational basis for passion/provocation manslaughter, the evidence in this case likewise did not provide a rational basis to convict defendant of second-degree kidnapping. Such a verdict would require the jury to conclude that the State failed to meet its burden to prove that defendant did not "release" the victims "unharmed and in a safe place" prior to his apprehension. Here, it was undisputed that the three victims were left in their home with their hands tied behind their backs -- the father forced into the basement and his daughters in an upstairs room. Cuff "released" none of them within the meaning of N.J.S.A. 2C:13-1(c). Cuff argued that the evidence provided a rational basis for a jury verdict of guilty on the charge of second-degree kidnapping because the adult male victim managed to free himself, and then free his daughters, after Cuff left their home. For the provision to apply, however, it must be "the actor" in the kidnapping -- not a police officer, not a bystander, and not the victim himself -- who releases the victim. In this case, the adult victim's fortuitous opportunity to free himself and his daughters after defendant's departure does not support a second-degree kidnapping verdict.