not an included offense of sexual assault or criminal sexual
contact because it is not established “by proof of the same
or less than all the facts required to establish” either
offense charged under the indictment. Rather, it requires
proof of the additional element of bodily injury or of an
attempt to cause bodily injury. Thus, the trial court was
not required to sua sponte charge the jury on simple
assault because conviction, except for an offense charged
by indictment or for a lesser-included offense of an offense
charged by indictment, is a violation of defendant’s
constitutional rights.
In State v. Graham, 223 N.J. Super. 571, 576-77
(App. Div. 1988), the court found that where the facts of
a particular case are such that the State is required to prove
that second degree assault was committed with a deadly
weapon, fourth-degree recklessly causing bodily injury to
another with a deadly weapon is a lesser-included offense.
Where the lesser-included offense analysis turns on a
comparison of the particular factual circumstances, and
not the elements, of the offenses being compared,
defendant may not be convicted of the lesser-included
offense unless the grand jury intended that result and
defendant had fair notice that he was being tried for that
offense. See also State v. Sloane, 111 N.J. at 299-04.
VI. UNINDICTED COCONSPIRATORS
If a grand jury determines that a known individual
was a coconspirator but decides to not indict him or her,
the individual shall not be named in the indictment as an
unindicted coconspirator. However, the grand jury
minutes should reflect that it has determined that the
individual was a coconspirator but decided, for reasons
which need not be stated, to not indict him or her. The
indictment may charge defendant with conspiring with
any codefendant and/or with other persons known and/
or unknown, as the case may be. Although an unindicted
coconspirator should not be named in the indictment,
the indictment should contain appropriate language to
indicate that one or more other persons are involved,
known or unknown, as the case may be. State v. Porro,
152 N.J. Super. at 190-91.
VII. VARIANCE
An indictment need only sufficiently identify the
event for which criminal accountability is sought to
enable the accused to defend against the charges, to
preclude substitution by a jury of an offense for which no
indictment was returned, and to defeat a subsequent
prosecution for the same offense. As long as the proofs
substantially support the charge, a minor variance
between the proofs and the charge will be deemed
immaterial. State v. Lawrence, 142 N.J. Super. 208, 215
(App. Div. 1976); State v. Lamb, 125 N.J. Super. 209,
217 (App. Div. 1973).A variance between the averment of time laid in the
indictment and the proofs presented will prove fatal only
where time is of the essence for the offense. The test of
whether time is of the essence depends upon whether the
prohibited act may be innocent if committed at one time
but criminal at another. If time is not of the essence for
the crime charged, the State may offer proof that the
offense was committed on any day prior to the return of
the indictment and within the period not covered by the
statute of limitations. See State v. Laws, 50 N.J. 159, 186
(fact that conspiracy indictment specified certain date
did not preclude State from introducing evidence of an
earlier meeting; the specified date was not the essence of
the conspiracy, and evidence that the conspiracy may
have started at an earlier date and then continued on
specified date did not prejudicially depart from charge in
the indictment), cert. denied, 393 U.S. 971 (1968); State
v. Middleton, 299 N.J. Super. 22, 34-35 (App. Div.
1997) (finding defendant was prejudiced by an
amendment of the date in the indictment because he
claimed to have had an alibi for the amended date); State
v. Kuske, 109 N.J. Super. 575, 583-86 (App. Div. 1970)
(defendant indicted on one charge of incest and one
charge of sodomy was not convicted of any offense not
charged by the grand jury, even though the indictment
was amended to change the dates of the offenses from a
specific date to “divers dates in the month of July, 1963”
and even though testimony as to additional incidents was
developed; State at no time contended that there was
more than one act of intercourse or more than one act of
sodomy, and proof of the additional incidents was
developed by defendant on cross-examination); State v.
Goldman, 95 N.J. Super. 50, 53 (App. Div.) (where time
is not of the essence or a legal constituent of crime
charged, it need not be proved as precisely as laid in the
indictment), certif. denied, 50 N.J. 288 (1967).