cdTOCtest

sufficient if the prosecutor simply reads the applicable
statute and does not elaborate with a further explanation.
See State v. Ball, 268 N.J. Super. 72, 118-20 (App. Div.),
aff’d, 141 N.J. 142 (1995). Regardless, errors in the
grand jury charge are usually rendered harmless by
defendant’s subsequent conviction. See State v.
Warmbrun, 277 N.J. Super. 51, 60 (App. Div.), certif.
denied, 140 N.J. 277 (1995).

The defense that an indictment fails to charge an
offense may be raised for the first time on appeal. R. 3:10-
2(d); State v. Kyles, 166 N.J. Super. 343, 347 (App. Div.
1979); State v. Newell, 152 N.J. Super, 460, 465-66
(App. Div. 1977). However, all other defenses and
objections based on defects in the indictment must be
raised by motion before trial. Failure to do so constitutes
a waiver thereof except that the court for good cause
shown may grant relief from the waiver. R. 3:10-2(c).

The failure of an indictment to state defendant’s age
or the disparity between his age and the underage victim
of the sexual assault was not a fatal defect since the
indictment indicated the victim’s age, specifically
referred to N.J.S.A. 2C:14-2b, and because there was no
motion to dismiss the indictment. State v. Gray, 206 N.J.
Super. 517, 519-20 (App. Div.), certif. denied, 103 N.J.
463 (1986).

Where an indictment charged that defendant “did
threaten bodily injury upon [the victim], in the course of
committing a theft, contrary to the provisions of N.J.S.A.
2C:15-1,” it failed to provide adequate notice to
defendant that he was charged with anything more than
second degree robbery. Therefore, the submission of first
degree robbery to the jury was error and defendant’s
conviction for that crime was set aside. State v. Catlow,
206 N.J. Super. 186, 194-95 (App. Div.), certif. denied,
103 N.J. 465 (1986).

In State v. Holsten, 223 N.J. Super. 578, 585-86
(App. Div. 1988), the court held that even though the
grand jury testimony was largely or exclusively
incompetent by virtue of leading questions, there was
sufficient evidence before the grand jury to sustain the
indictment. A grand jury may indict a defendant based
largely or wholly on hearsay testimony. State v. McBride,
213 N.J. Super. 255, 274 (App. Div. 1986).

In State v. Smith, 210 N.J. Super. 43, 58-60 (App.
Div.), certif. denied, 105 N.J. 582 (1986), the court
found that the indictment charging attempted
kidnapping was sufficient, despite the fact that it did not
contain the words “substantial period,” because the use

of the word “confined” in the indictment and the

statutory reference gave defendant sufficient notice as to

which clause of the statute the State would rely upon.

In State v. Bonaccurso, 227 N.J. Super. 159, 172-74

(Law Div. 1988), defendant was indicted for unlawful

discharge of pollutants in violation of N.J.S.A. 58:10A-

6a, 58:10A-10f and 2C:2-7, unlawfully operating a

facility for the collection, treatment or discharge of

pollutants, in violation of N.J.S.A. 58:10A-6b, 48:10A-

10f and 2C:2-7. Defendant sought to dismiss the latter

counts, alleging that insufficient information had been

placed before the grand jury from which it could find

defendant guilty. The Law Division held that while the

proffered evidence may not be sufficient to support the

State’s case at trial, the grand jury is entitled to consider

all the evidence as a whole and each count does not have

to stand on its own is considering the sufficiency of the

indictment.

Generally, no more than one offense may be charged

in a single count of an indictment. See State v.

McDougald, 120 N.J. 523, 563 (1990). Although such

a requirement may be waived, in a case where two separate

crimes were charged in a single count of an indictment

and where it was impossible to ascertain from the charge

or the verdict sheet which of those two crimes defendant

was convicted of, the conviction was reversed. State v.

Krieger, 285 N.J. Super. 146, 153 (App. Div. 1995).

II. AMENDMENT AND TECHNICAL ERROR

A. Generally

R. 3:7-4 permits the amendment of an indictment to

correct an error in form or the description of the crime

intended to be charged or to charge a lesser-included

offense so long as the amendment does not charge a

different offense and so long as defendant will not be

prejudiced in his or her defense on the merits. An

indictment may be amended in form but not in

substance and a court may not amend an indictment to

charge an offense which was not found by the grand jury.

See State v. Newell, 152 N.J. Super. at 467. An indictment

cannot be amended to charge a more serious offense. State

v. Orlando, 269 N.J. Super. 116, 138 (App. Div.), certif.

denied, 136 N.J. 30 (1993); State v. Koch, 161 N.J. Super.

63, 66 (App. Div. 1978). Also, an indictment may not

be amended to include another defendant. State v.

Wagner, 180 N.J. Super. 564, 568 (App. Div. 1981).

In State v. Burden, 203 N.J. Super. 149, 151 (Law

Div. 1985), the court held that second degree statutory