New Jersey v. Bell

Annotate this Case

Defendant Isaiah Bell was arrested after James Kargbo died from stab wounds apparently inflicted during an altercation that occurred when defendant and his partner arrived at Kargbo’s house to pick up her son. A Somerset County prosecutor asked a grand jury to consider two charges against defendant: murder, a crime of the first degree, and third-degree possession of a weapon for an unlawful purpose. The prosecutor explained the counts and elements of the offenses. A grand juror twice asked whether murder had different degrees, and the prosecutor explained that grand jurors do not determine degrees, only whether the facts presented “fit the elements of the crime.” After several witnesses testified and answered questions, the same grand juror asked, “is there such a thing as second-degree murder?” The prosecutor responded by discussing the grand jury’s responsibilities regarding “lesser included lower offenses,” and the elements of murder. The grand juror asked, “[T]here’s no part of the . . . statute that speaks to premeditation?” The prosecutor confirmed that there was not and read the model jury charge for murder. The grand jury indicted defendant on both counts. The issue presented for the New Jersey Supreme Court's consideration was whether the prosecutor's failure to instruct the grand jury on lesser-included offense for murder in response to questions posed by the grand juror constituted an abuse of prosecutorial discretion that warranted dismissal of defendant's indictment for first-degree murder and weapons charges. The Supreme Court determined the prosecutor did not impermissibly interfere with the grand jury's investigative function.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Isaiah Bell (A-58-18) (081743)

Argued September 24, 2019 -- Decided April 14, 2020

SOLOMON, J., writing for the Court.

The Court considers whether the prosecutor’s failure to instruct the grand jury on
lesser-included offenses for murder in response to questions posed by a grand juror
constituted an abuse of prosecutorial discretion warranting dismissal of defendant’s
indictment for first-degree murder and possession of a weapon for an unlawful purpose.

Defendant Isaiah Bell was arrested after James Kargbo died from stab wounds
apparently inflicted during an altercation that occurred when defendant and his partner
arrived at Kargbo’s house to pick up her son. A Somerset County prosecutor asked a
grand jury to consider two charges against defendant: murder, a crime of the first degree,
and third-degree possession of a weapon for an unlawful purpose. The prosecutor
explained the counts and elements of the offenses. A grand juror twice asked whether
murder had different degrees, and the prosecutor explained that grand jurors do not
determine degrees, only whether the facts presented “fit the elements of the crime.” After
several witnesses testified and answered questions, the same grand juror asked, “is there
such a thing as second-degree murder?” The prosecutor responded by discussing the
grand jury’s responsibilities regarding “lesser included lower offenses,” and the elements
of murder. The grand juror asked, “[T]here’s no part of the . . . statute that speaks to
premeditation?” The prosecutor confirmed that there was not and read the model jury
charge for murder. The grand jury indicted defendant on both counts.

Defendant moved to dismiss the indictment claiming that, because the grand jury
asked about lesser-included offenses, the prosecutor should have explained the lesser-
included offenses for murder. The court denied the motion, finding that the grand jury
was not requesting instructions on lesser-included offenses, but rather “clarification.”
The Appellate Division denied defendant’s motion for leave to appeal. The Court
granted leave to appeal. 236 N.J. 631 (2019).

HELD: The prosecutor did not impermissibly interfere with the grand jury’s
investigative functions. As the trial court found, the grand jury here sought clarification
rather than specific instructions on lesser-included offenses for murder. The Court
provides guidance as to when such instructions should be given.
1
1. The State moved to dismiss this appeal as moot after defendant was indicted by a
second grand jury for the same crimes. Because this is a matter of general public
importance, the Court considers the motion. (pp. 5-6)

2. The decision to prosecute and what charge to file or bring before a grand jury
generally rests entirely in the prosecutor’s discretion. A deficiency premised upon
alleged prosecutorial misconduct does not require dismissal of an indictment unless the
prosecutor’s misconduct is extreme and clearly infringes upon the grand jury’s decision-
making function. Where a prosecutor’s instructions to the grand jury were misleading or
an incorrect statement of law, the indictment fails. (pp. 6-9)

3. Instructions on lesser-included offenses began as a way to aid the prosecution so that
it would not fail entirely where some element of the greater offense was not established.
In the context of a petit jury, lesser-included-offense instructions also protect the accused
by avoiding the coercive prejudice inherent in giving the jury the choice of all-or-nothing.
In the grand jury setting, on the other hand, an all-or-nothing choice jeopardizes the
prosecution: If the prosecutor does not explain lesser-included offenses to the grand
jurors and probable cause is not found for the offense presented, the grand jury will return
a no bill. If evidence of lesser-included offenses, though not clearly exculpatory, exists
but is not presented to the grand jury, or if the evidence is presented but the grand jury is
not instructed on lesser-included offenses, the trial court must nonetheless instruct the
petit jury on lesser-included offenses at the close of trial. (pp. 9-12)

4. Courts in other jurisdictions have generally found no affirmative duty to instruct grand
juries on lesser-included offenses but have been nearly uniform in ruling that prosecutors
may not mislead grand jurors if they pose questions about lesser-included offenses.
Applying the principles from the treatment of lesser-included offenses before petit juries,
the Court agrees that the constitutional protections afforded defendants by the grand jury
process are not undermined by the failure to charge lesser-included offenses. (pp. 12-14)

5. The trial court here did not abuse its discretion in denying defendant’s motion to
dismiss the indictment. The facts revealed an altercation while defendant and his partner
picked up her child from the victim. In that altercation, defendant allegedly stabbed the
victim. In that context, it is reasonable that a grand juror would seek clarification about
“degrees” for murder, and specifically about premeditation. In response, the prosecutor
mentioned “lesser included lower offenses,” the grand jury’s responsibility, and the
model jury charge for murder. The prosecutor made no misstatements or misleading
representations. No subversion of the grand jury process occurred. The prosecutor
dutifully, honestly, and in good faith answered the grand juror’s questions. That the
prosecutor did not instruct the grand jury on lesser-included offenses for murder does not
constitute an abuse of the prosecutor’s broad discretion warranting dismissal of the
indictment. In any event, the trial court may be obliged to instruct the petit jury on
lesser-included offenses at the close of trial. (pp. 14-16)
2
6. Although no instruction as to lesser-included offenses was needed in this case, the
Court notes that other cases may call for such instructions. When the grand jurors’
questions, considered in context, ask about lesser-included offenses and there is a rational
basis for instructions on lesser-included offenses, the better practice for prosecutors is to
provide them and advise the grand jury that the trial court may include instructions on
lesser-included offenses whether or not the grand jury authorizes them. That will ensure
that grand jurors are fully informed of the consequences of their decisions. (pp. 16-17)

The decision of the trial court is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.

3
SUPREME COURT OF NEW JERSEY
A-
58 September Term 2018
081743

State of New Jersey,

Plaintiff-Respondent,

Isaiah Bell,

Defendant-Appellant.

On appeal from the Superior Court,
Appellate Division.

Argued Decided
September 24, 2019 April 14, 2020

Isaac Wright, Jr., argued the cause for appellant (Hunt,
Hamlin & Ridley, attorneys; Isaac Wright, Jr., on the
briefs).

Paul H. Heinzel, Assistant Prosecutor, argued the
cause for respondent (Michael H. Robertson, Somerset
County Prosecutor, attorney; Paul H. Heinzel, of
counsel and on the briefs).

JUSTICE SOLOMON delivered the opinion of the Court.

We granted defendant Isaiah Bell’s motion for leave to appeal to this

Court to consider whether the prosecutor’s failure to instruct the grand jury on

lesser-included offenses for murder in response to questions posed by a grand
1
juror constituted an abuse of prosecutorial discretion warranting dismissal of

defendant’s indictment for first-degree murder and possession of a weapon for

an unlawful purpose. We determine that the prosecutor did not impermissibly

interfere with the grand jury’s investigative functions. We agree with the trial

judge that the grand jury here sought clarification rather than specific

instructions on lesser-included offenses for murder, and we therefore affirm

the trial court’s order denying defendant’s motion and request for

reconsideration.

We nevertheless note that, where there is a rational basis for providing

instructions on lesser-included offenses in response to grand jurors’ questions

considered in context, prosecutors should instruct the grand jury on lesser-

included offenses and advise the grand jury that trial courts may incorporate

lesser-included offenses whether or not the grand jury charges them.

The grand jury record below reveals that James Kargbo and defendant’s

partner, Shanique Coleman, had a child together. Defendant drove with

Coleman to Kargbo’s house to pick up her son. Kargbo saw them approach,

put his son in his car, and blocked defendant’s car from moving. Defendant

and Kargbo exited their vehicles, got into a physical altercation, reentered their

cars, and drove away. Kargbo’s car crashed, and he was found lying outside

2
the vehicle covered in blood. Kargbo was transported to a hospital, where he

was pronounced dead from stab wounds apparently inflicted during his

altercation with defendant. Officers arrested defendant and charged him with

murder and weapons offenses.

A Somerset County prosecutor asked a grand jury to consider two

charges against defendant: murder, N.J.S.A. 2C:11-3(a)(1) and (2) and (b)(1),

a crime of the first degree, and third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d). At the start of the grand jury

proceedings, the prosecutor explained the counts and elements of the offenses.

Before the prosecutor called the investigating detective to testify, a

grand juror requested that the statute for first-degree murder be read and asked

whether there were “different degrees.” The prosecutor responded, “I don’t

discuss degree with you because degree affects punishment. You don’t

determine degree, but you do determine whether the facts that you hear fit the

elements of the crime.” Later, in response to another question by the same

grand juror, the prosecutor explained, “What’s being presented is this

particular statute. The degree is not an element for you. I can’t give you a

definition of the degree. The degree is set by the Legislature and it’s not an

element of the offense. You heard the elements of this offense.”

3
After several witnesses testified and answered questions, the same grand

juror asked, “is there such a thing as second-degree murder?” The prosecutor

responded by discussing the grand jury’s responsibilities regarding “lesser

included lower offenses,” and the elements of murder.

Prosecutor: There are lesser included lower offenses
for an individual’s act of causing the death of another.
In order to do that, you would have to find that there is
insufficient evidence of a prima facie case that Isaiah
Bell committed the act of murder as I have read it to
you. . . .

If you think that there is insufficient evidence of a
prima facie case that he purposely or knowingly caused
death or serious bodily injury resulting in death, I can
read to you other statutes that are going to cover the
actor’s act, if you will, of causing death by another but
it’s going to have a lower culpability and a reckless
culpability.

Juror: So just to be clear, there’s no -- there’s no part
of the definition in the New Jersey statute that speaks
to premeditation?

Prosecutor: No, and so let me read to you that in the
model jury charge for murder. Now, model jury charge
is what the petit jury gets if they sit in a murder case or
any case. They’re model jury charges for the offense
that are linked here and the statute which is what you
hear. But there is a segment that specifically deals with
that and I will find it and read it . . . .

The prosecutor concluded by reading the model jury charge for murder, after

which the grand jury indicted defendant for first-degree murder and third-degree

possession of a weapon for an unlawful purpose.
4
Defendant moved to dismiss the indictment claiming that, because the

grand jury asked about lesser-included offenses, the prosecutor should have

explained the lesser-included offenses for murder.1 The court denied

defendant’s motion and subsequent request for reconsideration, finding that the

grand jury was not requesting instructions on lesser-included offenses, but

rather “clarification.” The Appellate Division denied defendant’s motion for

leave to appeal. Defendant then filed a motion for leave to appeal with this

Court arguing that, because the grand jury requested an instruction on

“degrees,” the prosecutor should have instructed the grand jury on the lesser-

included offenses for murder. We granted defendant’s motion for leave to

appeal. 236 N.J. 631 (2019).

The State moved to dismiss this appeal as moot after defendant was

indicted by a second grand jury for the same crimes. Nevertheless, because

this is a matter of general public importance, we elect to consider the motion.

See In re Commitment of N.N., 146 N.J. 112, 124 (1996) (“[A] decision by

this Court is necessary though the case . . . is moot. The issues posed by this

case involve significant matters of public policy, are extremely important, and

1
Though not relevant to this motion, defendant also argued before the trial
court that the grand jury was persuaded by false statements made by the
prosecutor.

5
undoubtedly will recur in cases that are likely to be mooted before

adjudication.”).

II.

We begin with an overview of the grand jury process and the deferential

standard of review applied to indictments returned by a grand jury.

The grand jury functions “as both a sword and shield” of our criminal

justice system. State v. Shaw, ___ N.J. ___, ___ (2020) (slip op. at 10).

Article I, Paragraph 8 of the New Jersey Constitution provides in relevant part

that “[n]o person shall be held to answer for a criminal offense, unless on the

presentment or indictment of a grand jury.” Thus, the grand jury “occupie[s] a

high place as an instrument of justice in our system of criminal law.” State v.

Murphy, 110 N.J. 20, 36 (1988).

Grand juries “stand[] between citizens and the State,” and are tasked

with “assess[ing] whether there is adequate basis for bringing a criminal

charge.” State v. Saavedra, 222 N.J. 39, 56 (2015) (quoting State v. Hogan,

144 N.J. 216, 227, 229-30 (1996)). They serve the “dual function of

determining if there is probable cause to believe that a crime has been

committed and of protecting citizens against unfounded criminal

prosecutions.” State v. Del Fino, 100 N.J. 154, 165 (1985) (quoting Branzburg

6
v. Hayes, 408 U.S. 665, 686-87 (1972)). “The grand jury is a judicial,

investigative body, serving a judicial function; it is an arm of the court, not a

law enforcement agency or an alter ego of the prosecutor’s office.” In re

Grand Jury Appearance Request by Loigman, 183 N.J. 133, 141 (2005).

Procedurally, the grand jury does not conduct “a mini-trial,” but “an ex

parte inquest” -- it is “an accusatory and not an adjudicative body.” Hogan,

144 N.J. at 235; see also United States v. Calandra, 414 U.S. 338, 343-44

(1974) (“A grand jury proceeding is not an adversary hearing in which the

guilt or innocence of the accused is adjudicated. Rather, it is an ex parte

investigation to determine whether a crime has been committed and whether

criminal proceedings should be instituted against any person.”). To perform

that function, grand juries are invested with “broad and unfettered

investigative powers” that are largely “unrestrained by the technical procedural

and evidentiary rules governing the conduct of criminal trials.” In re

Application for Disclosure of Grand Jury Testimony, 124 N.J. 443, 449 (1991)

(quoting State v. Doliner, 96 N.J. 236, 249 (1984)). Further, a grand jury

“must be free to pursue its investigations unhindered by external influence or

supervision so long as it does not trench upon the legitimate rights of any

witness called before it.” State v. Francis, 191 N.J. 571, 586 (2007) (quoting

United States v. Dionisio, 410 U.S. 1, 17-18 (1973)).

7
Despite the grand jury’s investigative independence, “[g]rand jury

proceedings are largely controlled by prosecutors.” Ibid. And, although the

grand jury determines whether there is probable cause, the decision to

prosecute and “what charge to file or bring before a grand jury, generally rests

entirely in [the prosecutor’s] discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); accord State v. Perry, 124 N.J. 128, 168 (1991) (quoting

Bordenkircher).

Once a grand jury returns an indictment, a court should dismiss that

indictment “only on the clearest and plainest ground, and only when the

indictment is manifestly deficient or palpably defective.” State v. Twiggs, 233 N.J. 513, 531-32 (2018) (internal quotation marks omitted) (quoting Hogan,

144 N.J. at 228-29). Scrutiny of grand jury proceedings is particularly probing

where a motion to dismiss an indictment claims that a “deficiency in the

proceedings affect[ed] the grand jurors’ ability to make an informed decision

whether to indict.” Hogan, 144 N.J. at 229. But a deficiency premised upon

alleged prosecutorial misconduct does not require dismissal of an indictment

“[u]nless the prosecutor’s misconduct . . . is extreme and clearly infringes

upon the [grand] jury’s decision-making function.” Murphy, 110 N.J. at 35

(alteration and ellipses in original) (quoting State v. Schamberg, 146 N.J.

8 Super. 559, 564 (App. Div. 1977)). Under that standard, dismissal of an

indictment is warranted only if the prosecutor’s conduct “impinge[s] on a

grand jury’s independence and improperly influence[s] its determination.”

Francis, 191 N.J. at 587. Accordingly, “where a prosecutor’s instructions to

the grand jury were misleading or an incorrect statement of law,” the

indictment fails. State v. Triestman, 416 N.J. Super. 195, 205 (App. Div.

2010).

“A trial court’s denial of a motion to dismiss an indictment is reviewed

for abuse of discretion.” Twiggs, 233 N.J. at 544. In accordance with that

“deferential standard,” State v. Williams, 240 N.J. 225, 234 (2019), the trial

court’s “decision should be reversed on appeal only [if] it clearly appears that

the exercise of discretion was mistaken,” State v. Abbati, 99 N.J. 418, 436

(1985).

III.

In this appeal we examine whether the trial court abused its discretion in

determining that the prosecutor’s failure to instruct a grand jury on lesser-

included offenses did not constitute misconduct so arbitrary or abusive as to

warrant dismissal of the indictment once returned. Although the question has

yet to be dealt with by this Court, consideration of lesser-included offenses in

9
the context of a petit jury is instructive. We also find helpful guidance in

cases from other jurisdictions that have considered the question directly.

Preliminarily, an offense is considered a lesser-included offense “where

the proof required to establish a greater offense is also sufficient to establish

every element of a lesser offense” and “where two offenses are the same but a

lesser degree of culpability is required to establish the lesser offense.” State v.

Thomas, 187 N.J. 119, 129-30 (2006) (quoting State v. Muniz, 228 N.J. Super.
492, 496 (App. Div. 1988)). Because “appropriate and proper jury charges are

essential to a fair trial,” State v. Savage, 172 N.J. 374, 387 (2002), and

instructing a petit jury on lesser-included offenses is intended “to give juries a

range of options so that they will not be forced to decide between a conviction

for a crime more serious than the one committed or no conviction at all,” State

v. Short, 131 N.J. 47, 58 (1993), trial courts must charge the jury on a lesser-

included offense when the facts “clearly indicate the appropriateness of that

charge,” State v. Alexander, 233 N.J. 132, 143 (2018) (internal quotation

marks omitted) (quoting Savage, 172 N.J. at 397).

However, a lesser-included-offense charge is appropriate only where

“there is a rational basis for a verdict convicting the defendant of th e included

offense.” N.J.S.A. 2C:1-8(e). Determining “whether an included offense

10
charge is appropriate requires (1) that the requested charge satisfy the

definition of an included offense set forth in N.J.S.A. 2C:1-8(d),[2] and (2) that

there be a rational basis in the evidence to support a charge on that included

offense.” State v. Cassady, 198 N.J. 165, 178 (2009) (quoting Thomas, 187 N.J. at 131).

Instructions on lesser-included offenses began as a way “to aid the

prosecution so that it would not fail entirely where some element of the greater

offense was not established.” State v. Saulnier, 63 N.J. 199, 205 (1973). In

the context of a petit jury, lesser-included-offense instructions also serve as a

way “to protect the accused by avoiding 'the coercive prejudice inherent in

giving the jury the choice of all-or-nothing.’” State v. Neal, 229 N.J. Super.
28, 33 (App. Div. 1988) (quoting State v. Lopez, 160 N.J. Super. 30, 36 (App.

Div. 1978)). In the grand jury setting, on the other hand, an all-or-nothing

choice jeopardizes the prosecution, not the defendant. If the prosecutor does

not explain lesser-included offenses to the grand jurors and probable cause is

not found for the offense presented, the grand jury will return a no bill.

2 N.J.S.A. 2C:1-8(d) defines lesser-included offenses as those: (1)
“established by proof of the same or less than all the facts required to establish
the commission of the offense charged”; (2) “an attempt or conspiracy to
commit the offense charged or” an included offense; or (3) “differ[ing] from
the offense charged only in the respect that a less serious injury or risk of
injury to the same person, property or public interest or a lesser kind of
culpability suffices to establish its commission.”
11
If evidence of lesser-included offenses, though not clearly exculpatory,

exists but is not presented to the grand jury, or if the evidence is presented but

the grand jury is not instructed on lesser-included offenses, the trial court must

nonetheless instruct the petit jury on lesser-included offenses at the close of

trial. Alexander, 233 N.J. at 143. It is a well-settled principle in the common

law that “a defendant may be found guilty of a lesser offense necessarily

included in the greater offense charged in the indictment.” Saulnier, 63 N.J. at
205 (1973) (collecting cases).

Courts in other states have also grappled with the degree to which, if

any, prosecutors must instruct grand jurors about lesser-included offenses.

Those courts have generally found no affirmative duty to instruct on lesser-

included offenses because of the discretion inherent in prosecutors’ charging

decisions. See, e.g., State v. Coconino Cty. Superior Court, 678 P.2d 1386,

1389 (Ariz. 1984). But despite that discretion, the courts have been nearly

uniform in ruling that prosecutors may not mislead grand jurors if they pose

questions about lesser-included offenses.

In Cummiskey v. Superior Court, the California Supreme Court

considered the appeal of a defendant indicted for first-degree murder and

weapons offenses who contended that the prosecution’s failure to instruct the

12
grand jury on lesser-included offenses warranted the dismissal of their

indictment. 839 P.2d 1059, 1062 (Cal. 1992). The court affirmed its

longstanding rule, see People v. Nichol, 34 Cal. 211 (1867), that prosecutors

have no sua sponte duty to instruct grand jurors on lesser-included offenses.

Cummiskey, 839 P.2d at 1069-71. And it found that, in the absence of such

instructions, “the grand jury was not misled into believing it was required to

return an indictment for murder.” Id. at 1070; see also Oxereok v. State, 611 P.2d 913, 917 (Alaska 1980) (finding “no abuse of discretion in the

prosecutor’s failure to instruct the jury on the fact that it could return an

indictment for some lesser included offense”).

Courts have been less reticent to require lesser-included offense

instructions when grand jurors explicitly request that information. In

Commonwealth v. Noble, the Supreme Judicial Court of Massachusetts

rejected a defendant’s attempt to dismiss his murder indictment. 707 N.E.2d 819, 822 (Mass. 1999). In doing so, the court noted that prosecutors were “not

required to inform a grand jury . . . of any lesser included offenses.” Ibid.

However, the court advised that “[i]f the grand jurors had asked for

instructions . . . the prosecutor should have provided the appropriate

information.” Ibid.

13
Indeed, when confronted with that hypothetical situation, a New York

trial court dismissed an indictment. People v. Francis, 634 N.Y.S.2d 639, 640

(Sup. Ct. 1995). In that case, grand jurors had expressed misgivings about the

attempted murder charge presented by the prosecutor. Id. at 641. “On two

occasions,” the grand jury “expressly inquired whether there were other, less

serious, crimes that were applicable.” Id. at 642. In response to both

inquiries, the prosecutor demurred and told the jurors that she could not

conceive of any appropriate lesser offenses. Id. at 641. The court ruled that

because the grand jury had asked about lesser offenses, the prosecutor “was

obliged to respond accurately and to oblige them.” Id. at 642. Accordingly,

the prosecutor’s “failure to do so constituted a usurpation of the Grand Jury’s

independent role and impaired the integrity of the proceedings.” Ibid.; accord

People v. Morrell, 513 N.Y.S.2d 925, 926 (Sup. Ct. 1987).

IV.

Applying the principles gleaned from the treatment of lesser-included

offenses before petit juries, we agree with the determination by a number of

other states’ courts that have considered the issue: the constitutional

protections afforded defendants by the grand jury process are not undermined

by the failure to charge lesser-included offenses. The trial court here therefore

14
did not abuse its discretion in denying defendant’s motion to dismiss the

indictment.

The facts testified to by the investigating detective revealed an

altercation while defendant and his partner picked up her child from the

victim. In that altercation, defendant allegedly stabbed the victim. In that

context, it is reasonable that a grand juror would seek clarification about

“degrees” for murder, and specifically about premeditation. In response, the

prosecutor mentioned “lesser included lower offenses,” the grand jury’s

responsibility, and the model jury charge for murder.

Defendant argues that his indictment should be dismissed because the

prosecutor did not explicitly outline lesser-included offenses for murder. We

reiterate that the decision “to prosecute, and what charge to file or bring before

a grand jury, generally rests entirely in [the prosecutor’s] discretion.”

Bordenkircher, 434 U.S. at 364. Thus, while prosecutorial “advice”

concerning “the applicable law helps make the grand jury more effective,” we

do not require “a verbatim reading of applicable statutes.” State v. Laws, 262 N.J. Super. 551, 562 (App. Div. 1993). That same principle extends to lesser-

included offenses, the determination of which “requires a comparison of the

statutory elements of” the greater offense and the purported lesser offense.

Cassady, 198 N.J. at 177 (quoting Thomas, 187 N.J. at 129). We require only

15
that the prosecution “charge the grand jury as to the elements of specific

offenses.” State v. Majewski, 450 N.J. Super. 353, 365 (App. Div. 2017)

(internal quotation marks omitted) (quoting State v. Eldakroury, 439 N.J.

Super. 304, 309 (App. Div. 2015)).

The prosecutor did so here and made no misstatements or misleading

representations. See Triestman, 416 N.J. Super. at 205. No subversion of the

grand jury process occurred. See Francis, 191 N.J. at 587; Murphy, 110 N.J. at
35. The prosecutor dutifully, honestly, and in good faith answered the grand

juror’s questions. See Triestman, 416 N.J. Super. at 205. That the prosecutor

did not instruct the grand jury on lesser-included offenses for murder does not

constitute an abuse of the prosecutor’s broad discretion warranting dismissal of

the indictment. See Bordenkircher, 434 U.S. at 364. In any event, the trial

court may be obliged to instruct the petit jury on lesser-included offenses at

the close of trial. See Alexander, 233 N.J. at 143.

Although no instruction as to lesser-included offenses was needed under

the facts of this case, we note that other cases may call for such instructions.

When the grand jurors’ questions, considered in context, ask about lesser-

included offenses and there is a rational basis for instructions on lesser-

included offenses, the better practice for prosecutors is to provide them and

16
advise the grand jury that the trial court may include instructions on lesser-

included offenses whether or not the grand jury authorizes them. That will

ensure that grand jurors are fully informed of the consequences of their

decisions.

For the foregoing reasons, the decision of the trial court is affirmed.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.

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