State v. Hernandez , 170 N.J. 106 ( 2001 )


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  • VERNIERO, J.,

    concurring.

    I join the Court’s disposition substantially for the reasons expressed in its comprehensive opinion. I write separately to express my view that the adequacy of the jury instruction is a close question, especially when considered under the plain-error standard. The critical language in the charge given in this case is similar to language found in the model charge, and in charges sustained in other cases. See State v. G.S., 145 N.J. 460, 678 A.2d *1341092 (1996); State v. Cusick, 219 N.J.Super. 452, 530 A.2d 806 (App.Div.), certif. denied, 109 N.J. 54, 532 A.2d 1118 (1987). I resolve my doubts in favor of defendant principally because the other-crimes evidence broadly admitted below warranted a particularly forceful instruction “to enable the jury to comprehend and appreciate the fine distinction to which it [was] required to adhere.” State v. Cofield, 127 N.J. 328, 341, 605 A.2d 230 (1992) (quoting State v. Stevens, 115 N.J. 289, 304, 558 A.2d 833 (1989)).

    Additionally, as noted by the majority, the Attorney General acknowledged at oral argument that the jury charge was inadequate. By statute and as recognized in decisional law, the Attorney General is the chief law enforcement officer and supervises all prosecutors. N.J.S.A. 52:17B-98, -103; Wright v. State, 169 N.J. 422, 451-52, 778 A.2d 443 (2001). In this narrow setting, the Attorney General’s acknowledgment arguably constitutes a withdrawal of the jury instruction issue from this appeal, notwithstanding the contrary position advanced by the county prosecutor.

    Under all the circumstances, the Appellate Division’s determination in respect of the jury charge should not be disturbed.

    For affirmance as modified, remand — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI — 7.

    Opposed — None.

Document Info

Citation Numbers: 784 A.2d 1225, 170 N.J. 106, 2001 N.J. LEXIS 1280

Judges: Lavecchia, Verniero

Filed Date: 11/21/2001

Precedential Status: Precedential

Modified Date: 11/11/2024