rape has different and greater elements relating to the ages
of the victim and actor than first degree aggravated sexual
assault. Thus, second degree statutory rape is not a lesser-
included offense and cannot be submitted to a jury
without the consent of defendant, who was charged in the
indictment only with first degree aggravated sexual
assault.
In State v. Blackman, 125 N.J. Super. 125, 129-30
(App. Div. 1973), the initial indictment did not spell out
a crime. However, the trial court should have amended
the indictment rather than dismissing it because the
factual recitation of defendants’ conduct in the
indictment, if proven, clearly would have qualified as a
crime. An amendment of the indictment to recite the
appropriate statutes would not have impaired
defendants’ ability to prepare a defense nor would it have
brought them to trial for a crime substantially different
than that which the grand jury found sufficient cause to
charge them with.
B. Mere Change in Dates
In State v. Stefanelli, 78 N.J. 418, 429 (1979), the
amendment of an indictment for conspiracy to reflect an
earlier date regarding an overt act did not result in
charging a different offense and did not prejudice the
defense on its merits. Where time is not crucial either to
the defense or prosecution, an amendment changing or
correcting a date is not objectionable. See State v. Bowens,
219 N.J. Super. 290, 294 (App. Div. 1987). However,
when an amendment of the date and time initially set
forth in the indictment substantially prejudices
defendant’s opportunity to prepare a defense, defendant
should be granted a continuance or such other relief as
contemplated by R. 3:7-4. State v. Middleton, 299 N.J.
Super. 22, 33-35 (App. Div. 1997).
In State in re K.A.W., 104 N.J. 112, 120-24 (1986),
the indictment gave defendant adequate notice of the
charges even though it did not specify one or more exact
dates of the alleged sexual assaults. The key is to balance
juvenile defendants’ right to fair notice and the State’s
interest in prosecuting child molesters and protecting an
extremely vulnerable class of victims. The indictment
need not specify the date and time, but need only give
defendant sufficient notice so that he or she may
adequately plan and assert a defense.
C. Technical Error
A minor misnomer before the grand jury or in the
indictment is of little significance. Thus, an indictment
will withstand attack where the alleged perpetrator was
clearly identified before the grand jury by the alleged
victim even though misnamed. State v. Gillison, 153 N.J.
Super. 65, 68-71 (Law Div. 1977).A specification of the particular intimate parts
touched is not an essential element of sexual assault.
Thus, the amendment of the indictment to clarify the
description of the crime intended to be charged did not
violate the proscription of R. 3:7-4 against charging
another or different offense. State v. J.S., 222 N.J. Super.
247, 257-58 (App. Div.), certif. denied, 111 N.J. 588
(1988). Similarly, a specification of the deadly weapon
used in the commission of an armed robbery may be
amended so long as the nature of the weapon does not
expose defendant to a greater penalty than that to which
he or she would have been exposed under the initial
indictment. State v. Lopez, 276 N.J. Super. at 301-08.In State v. Berka, 211 N.J. Super. 717, 721-22 (Law
Div. 1986), a municipal court properly amended a
complaint on its own motion at the end of the entire
presentation of evidence to charge defendant with
harassment, a lesser-included offense of simple assault.In State v. Maioranna, 225 N.J. Super. 365, 371 (Law
Div.), aff’d and remanded, 240 N.J. Super. 352 (App. Div.
1990), certif. denied, 127 N.J. 327 (1991), defendant,
charged with official misconduct in violation of N.J.S.A.
2C:30-2 without reference to the subsection, moved to
dismiss the indictment alleging that the “informally
established administrative procedures and policies”
which she had allegedly breached did not create “official
functions” and were not duties imposed by law. First, the
Law Division found no error with the indictment, which
tracked the language of subsection (a) of the statute
verbatim. The court also rejected defendant’s argument
that the State’s reliance on her “inherent duties”
amounted to an attempt to amend the indictment to
charge a “new or different” crime than that found by the
grand jury. The fact that the indictment employed the
affirmative “duty to act” language of subsection (a) did
not prevent the State from also alleging “omissions to act”
in violation of subsection (b). N.J.S.A. 2C:30-2 is
intended to consolidate the law as to both malfeasance
and nonfeasance by public officials, and includes all
offenses constituting common misconduct.D. Superseding IndictmentsIn State v. Buckrham, 173 N.J. Super. 87, 89-90
(App. Div. 1980), the court held that the prosecution
overcame the presumption of prosecutorial vindictive-