                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                            State of New Jersey v. Raymond Daniels (A-90-13) (073504)

Argued October 7, 2015 -- Decided February 10, 2016

LaVECCHIA, J., writing for a unanimous Court.

         In this appeal, in the context of a trial record that included evidence establishing an incomplete affirmative
defense, the Court considers the circumstances under which a trial court may instruct a jury on an affirmative
defense over a defendant’s objections.

         In early 2009, detectives from the Asbury Park and Neptune Police Departments identified James Fairley as
a suspect in three Monmouth County bank robberies. Following his arrest, Fairley confessed to all three robberies
and implicated purported accomplices, including defendant Raymond Daniels, who Fairley claimed assisted him in
writing the ransom note used in the first two robberies. Fairley explained that defendant gave him a writing pad and
made suggestions on what to write. In exchange for the help, Fairley gave defendant some heroin and a few
hundred dollars. Fairley asserted that defendant never accompanied him to any of the robberies. Defendant denied
participation in the robberies but admitted to providing Fairley with the writing pad and making content suggestions.
Defendant explained that, at the time, the two men were using heroin together in his room. He confirmed that
Fairley gave him some heroin, but was emphatic that it was not provided as payment for assisting with the note.
Defendant was charged with second-degree conspiracy to commit robbery and two counts of second-degree robbery.

          At defendant’s trial, Fairley testified that he wrote one ransom note on defendant’s pad while they were
using intravenous heroin and watching television. However, contrary to his statement to police, Fairley insisted that
defendant never suggested any content for the note, and that, although he gave defendant heroin, he did not give him
money as reimbursement for his help. Fairley also testified that defendant repeatedly reiterated his desire not to be
involved in the robberies. The State introduced portions of Fairley’s contradictory police interview, but Fairley
insisted that he was experiencing heroin withdrawal during the interrogation and had divulged incriminating
evidence against defendant in order to gain leniency and admission to a detox program. Defendant did not testify,
but his statements to police were introduced into evidence.

          In light of the potential confusion arising from defendant’s statements to police and Fairley’s testimony, the
State sought a jury instruction on the affirmative defense of renunciation. Defense counsel objected since he had
neither raised the affirmative defense during trial nor requested its inclusion at the jury charge conference. Counsel
further asserted that it was impossible for defendant to meet the element of renunciation requiring that he have
thwarted the crime, and that it was inconsistent with the defense’s overall contention that defendant never intended
to participate in the robberies at any point.

          Despite counsel’s repeated objections, the court instructed the jury that, if it found that the State proved the
conspiracy and robbery charges beyond a reasonable doubt, it should consider whether defendant met the elements
of the affirmative defense of renunciation. The court explained renunciation in detail, noting that, in order to find it,
the jury needed to be satisfied by a preponderance of the evidence that defendant thwarted or caused to be thwarted
the commission of the offense. The jury found defendant guilty as an accomplice to the first robbery, but not guilty
as an accomplice to the second robbery or of conspiracy to the commit the robberies. On September 2, 2010,
defendant was sentenced to a ten-year prison term, with an eighty-five percent period of parole ineligibility.

          Defendant appealed, contending that the trial court’s decision to issue the renunciation charge prejudiced
his defense. The Appellate Division affirmed in an unpublished decision. It found that the trial court appropriately
tailored the charge, noting that it did not charge the jury that defendant had the burden of proving renunciation. The
Court granted defendant’s petition for certification to address the issue of whether it was proper for the trial court to
have given a jury charge on the affirmative defense of renunciation. 217 N.J. 588 (2014).

HELD: In the context of a trial record that contains evidence of an incomplete affirmative defense and where the
potential for jury confusion exists, a trial court may, over a defendant’s objections, issue a modified jury charge on
the affirmative defense in order to elucidate legal principles pertinent to the evidence. In so doing, the court must
balance the need to educate the jury and the need to protect the defendant’s rights. Here, the trial court’s affirmative
defense charge on renunciation unfairly prejudiced the defense, requiring reversal and remand for a new trial.
1. Renunciation is an affirmative defense to accomplice liability under which an actor is not guilty if he proves, by a
preponderance of the evidence, that he abandoned his efforts to commit the crime or otherwise prevented its
commission. Although the bar is slightly higher, renunciation also is a defense to conspiracy, requiring that, after
conspiring to commit the crime, the co-conspirator informed the authorities about the conspiracy and thwarted the
crime or caused the crime to be thwarted. In both instances, the renunciation must be complete and voluntary. (pp.
13-15)

2. In State v. Walker, 203 N.J. 73 (2010), the Court determined that even if defense counsel does not request an
affirmative defense charge, it should still be given when the evidence clearly indicates that it is appropriate. In State
v. R.T., 205 N.J. 493 (2011), the Court addressed the question of instructing the jury on an affirmative defense
despite the defendant’s objection. There, the Appellate Division found that a charge should only be given over
defendant’s objection where the facts clearly indicate its appropriateness. A three-justice concurrence agreed,
finding that the evidence in R.T. was insufficient to support the affirmative defense, and emphasizing that
affirmative defenses should not generally be imposed on unwilling defendants. (pp. 16-20)

3. Courts deciding whether to charge an affirmative defense must conduct a fact-sensitive, case-by-case analysis.
R.T. identified a number of factors for courts to consider when the record contains evidence supporting such a
charge, including whether counsel is surprised, how the case was tried, whether the affirmative defense is
incompatible with defendant’s trial position, or whether the instruction would prejudice the defense. However, R.T.
did not address how a court should approach a situation like the one here where the trial narrative imperfectly
matches an affirmative defense but also may contain facts that a jury might not understand how to evaluate unless
provided with an explanation of legal factors relating those disputed facts to both the elements of the crime and the
affirmative defense. In those circumstances, it behooves the court to articulate a way for the jury to evaluate the
facts as they have been developed through competing presentations. Although a defense should not typically be
interposed on a defendant against his wishes, a trial court is not limited to the stark choice between giving an
affirmative defense charge over a defendant’s objection, or no instruction at all. Instead, legal guidance that bears
on a jury’s proper assessment of the State’s and defense’s proofs can be conveyed without resort to the affirmative
defense framework. This approach is particularly suited for accomplice liability cases. (pp. 20-23)

4. Where the criminal trial record presents evidence of an imperfect or incomplete affirmative defense, the court
must consider both the need to educate the jury on how to evaluate the evidence from a legal perspective and the
need to protect the defendant’s rights and not undermine his defense. When not all of the elements of an affirmative
defense are present and a defendant objects to the charge, a court should assess: (1) the nature and extent of the
evidence before the jury; (2) the risk of jury confusion; and (3) the factors identified in R.T. Following this
assessment, the court may conclude that it is appropriate to issue a modified affirmative defense jury charge
instructing the jury on all important legal concepts relating to liability under the charged crimes. (pp. 23-25)

5. Here, the Court is compelled to reverse defendant’s conviction. The renunciation instruction foisted on
defendant an affirmative defense that he did not want and could not meet. In the form in which it was delivered, it
unfairly prejudiced his trial strategy by undermining his true defense, which was that he never intended to conspire,
aid, or assist in the crimes. Nonetheless, the record presented evidence of an incomplete set of facts viewed from the
perspective of the affirmative defense of renunciation. Specifically, the jury heard evidence suggesting that
defendant was an accomplice, but also suggesting that defendant wanted nothing to do with the robberies. Thus, in
assessing the factual record, the court could reasonably conclude that there was a substantial risk of jury confusion
unless the jury was told that, in the event it found that defendant’s intent matched Fairley’s intent to commit the
crimes, abandonment alone was insufficient for acquittal based on renunciation. A limited charge to that effect
would have informed the jury without being incompatible with defendant’s position at trial. However, rather than
such a streamlined instruction, the given charge tracked renunciation principles in full, leaving defendant to combat
an unwanted affirmative defense that was inconsistent with his defense. This approach was confusing and sent
mixed messages to the jury instead of elucidating principles pertinent to the evidence. Consequently, the charge as
given prejudiced the defense. (pp. 25-27)

          The judgment of the Appellate Division is REVERSED, defendant’s conviction is REVERSED, and the
matter is REMANDED to the trial court for further proceedings.

        CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.


                                                           2
                                       SUPREME COURT OF NEW JERSEY
                                         A-90 September Term 2013
                                                  073504

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

RAYMOND DANIELS, a/k/a
RAYMOND DANIELSS, TOOKIE
DANIELS, RAYMOND DANIELLS,

    Defendant-Appellant.


         Argued October 7, 2015 – Decided February 10, 2016

         On certification to the Superior Court,
         Appellate Division.

         Brian P. Keenan, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney).

         Mary R. Juliano, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Christopher J.
         Gramiccioni, Acting Monmouth County
         Prosecutor, attorney).

         Ian C. Kennedy, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General of New Jersey (John J. Hoffman,
         Acting Attorney General, attorney).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    In this appeal, we consider whether the trial court erred

in instructing the jury about the affirmative defense of

renunciation.   Defendant Raymond Daniels was charged with

                                 1
conspiracy and as an accomplice to certain robberies.     Defendant

did not request a renunciation charge and did not want one.

There is no dispute that the facts necessary to satisfy the

statutory elements of that affirmative defense were not present.

The robberies were not thwarted.     They were committed, but by a

co-defendant.

    Based on the State’s evidence, the co-defendant’s initial

statement to police implicated defendant as a participant in the

crimes’ planning stage.   However, at trial, that co-defendant

testified differently, and favorably for the defense strategy

that defendant never wanted any part in the robberies being

planned and executed by the co-defendant.     The State

successfully importuned the trial court to charge the jury on

renunciation as a curb against potential jury confusion --

namely, that the jury would not know how to evaluate evidence it

heard regarding defendant’s alleged involvement in preparations

for the robberies, despite his claim that he did not want to be

involved.   In opposing that request, defendant maintained that

he should be the master of his defense, except in limited

circumstances, and that nothing in this case justified foisting

on him an affirmative defense that he claimed undermined his

defense strategy.

    At bottom, this appeal is about how courts should go about

educating juries.   When evidence of an imperfect or incomplete

                                 2
defense is presented, there are twin concerns to consider:     (1)

the need to educate the jury about how to evaluate, from a legal

perspective, evidence it has heard, in keeping with both the

court’s responsibility to administer the justice system and the

jury’s truth-finding function; and (2) the need to protect a

defendant’s rights and to not undermine the defense that has

been advanced at trial.   It is not enough to simply determine

that all elements of an affirmative defense are not present.

With this opinion, we identify considerations that should govern

a trial court when confronted with situations such as occurred

here.   We are compelled to reverse defendant’s conviction and

remand for a new trial consistent with the guidance provided in

this opinion.

                               I.

     We glean the following facts from the testimony and

evidence presented at defendant’s trial, which included

statements made by defendant and the principal participant in

the robberies, co-defendant James Fairley, during police

interviews.

     Between January and February 2009, detectives from the

Asbury Park and Neptune Police Departments (detectives)

investigated three bank robberies that had occurred in

relatively rapid succession in Monmouth County.   The first took

place on January 14, 2009, at PNC Bank in Asbury Park; the

                                 3
second on January 22, 2009, at First Atlantic Credit Union in

Neptune (First Atlantic Bank); and the third on February 12,

2009, at TD Bank North in Neptune.       Through their investigation,

detectives obtained surveillance videos that were used to

identify a suspect, Fairley, who was located and arrested in

Atlantic City.

    While being interviewed by detectives, Fairley confessed to

committing all three robberies.    However, he also implicated

purported accomplices, including defendant, in an attempt to

obtain leniency and to secure admission into a detox program

prior to being sent to jail.   Specifically, Fairley stated

during his interview that defendant assisted him in writing the

ransom notes used in the first two robberies.       According to

Fairley, defendant gave him a writing pad and advised him that

an effective ransom note demands large bills and threatens the

teller.   Fairley stated that, in exchange for defendant’s

assistance, Fairley gave him some heroin that the two had

purchased and a few hundred dollars.       It is undisputed that

defendant never accompanied Fairley to any of the robberies.

    After Fairley implicated defendant as an accomplice,

detectives questioned defendant.       Defendant denied any

participation in the three robberies but did admit to providing

Fairley with the writing pad and making a few suggestions about

the content of the ransom note, such as “no dye money.”       That

                                   4
occurred while he and Fairley were using heroin together in

defendant’s room.   Defendant corroborated Fairley’s allegation

that it was defendant who went to buy heroin for the pair and

that Fairley gave some of that heroin to defendant.       However,

defendant was emphatic that the heroin was owed to him by

Fairley and that it was not provided to him as a payment for

assisting with the ransom note.       Throughout the interview,

defendant maintained that he never intended to participate in

any of the robberies and that he repeatedly expressed to Fairley

his unwillingness to participate in them.

    After the interview, defendant was arrested and charged, in

connection with two of the robberies, with second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:1-

1 (count one); and two counts of second-degree robbery, N.J.S.A.

2C:15-1 (counts two and three).       Prior to defendant’s trial,

Fairley pleaded guilty to all three robberies and agreed to

testify about defendant’s involvement in two of them.       Defendant

did not testify at trial, but his statements to detectives were

introduced into evidence.

    Fairley was called as a State’s witness.        He testified that

he wrote one ransom note on defendant’s writing pad while the

two were using heroin intravenously and watching television in

defendant’s room.   Just as he had told detectives during his

pretrial interview, Fairley testified that defendant did not

                                  5
accompany him to any of the three robberies; however, this time

Fairley stated that defendant was conversing only about the

television show while Fairley was writing the note and that

defendant did not actually suggest any content to include in the

note.   Fairley also testified that he gave defendant heroin, but

he denied ever giving defendant money as reimbursement for

assisting with the ransom note.       Furthermore, Fairley

highlighted the numerous occasions and statements in which

defendant had reiterated his desire not to be involved in the

robberies.   Because part of Fairley’s testimony was inconsistent

with what he had said in his pretrial interview, the State

introduced into evidence portions of Fairley’s statement to

police.   When confronted with those earlier statements, Fairley

defended the truthfulness of his trial testimony, stating that

he was experiencing heroin withdrawal during his interrogation

and explaining that he had divulged incriminating evidence

against his purported accomplice in an effort to gain leniency

in the form of being admitted to a detox program.

     At the jury charge conference, the State asked the court to

instruct the jury on the affirmative defense of renunciation for

all three charges.   The State argued that defendant’s statements

to police, as well as Fairley’s testimony about defendant not

wanting to be involved with the robberies, would be confusing

for the jury.   The State expressed concern that the jury might

                                  6
view those statements as exculpatory but would not have the

legal principles of renunciation to guide it in its assessment

of that evidence.

    Defense counsel strenuously objected to the charge on

renunciation because he had neither raised the affirmative

defense during the trial nor requested that it be included at

the jury charge conference.   Further, defense counsel argued

that renunciation was inconsistent with its overall contention

that defendant never intended to participate in the robberies at

any point.   Importantly, defense counsel argued that it was

impossible for defendant to meet the element of renunciation

that requires defendant to thwart the crime.   Because the crimes

occurred, defendant clearly did not thwart them, a fact that the

trial court acknowledged.   Over defense counsel’s repeated

objections, the trial court issued a charge incorporating

language on the affirmative defense of renunciation.

    In its instruction to the jury, the trial court stated that

it was the State’s burden to prove the conspiracy and robbery

charges beyond a reasonable doubt, and if the jury found that

the State met that proof requirement, then it should consider

whether defendant met the elements of the affirmative defense of

renunciation.   The trial court first explained the renunciation

principles for the conspiracy charge:



                                 7
              Even if you are satisfied and find beyond
         a reasonable doubt that [defendant] committed
         the crime of conspiracy as alleged in the
         indictment, you must nevertheless find him not
         guilty if you find that afterwards he informed
         the authorities of the existence of the
         conspiracy, including his participation in it,
         and that he was thereby successfully thwarting
         or causing to be thwarted, that is, the
         preventing or causing to be prevented the
         commission of any offense in furtherance of
         the conspiracy. In order to find [defendant]
         not guilty of conspiracy based upon a
         renunciation as I have defined it here, you
         must be satisfied that the circumstances of
         his going to the authorities manifested a
         voluntary and complete renunciation of his
         criminal purpose.

              The presence of a renunciation does not
         have to be established to your satisfaction
         beyond a reasonable doubt. Instead, a lesser
         standard of proof is what’s required.      You
         must find renunciation, if you are satisfied
         by a preponderance of the evidence or the
         greater   weight   of   the   evidence    that
         [defendant] renounced the alleged crime in the
         manner in which the law required it as I have
         defined.

Then, after explaining the elements and burdens for accomplice

liability, the trial court explained renunciation for robbery:

              Even if you are satisfied and find beyond
         a reasonable doubt that [defendant] committed
         the crime of robbery as an accomplice as
         alleged   in   the    indictment,   you   must
         nevertheless find him not guilty of that
         offense if you find it is more likely than not
         that he renounced his involvement by doing the
         following: Terminating his complicity under
         circumstances manifesting a complete and
         voluntary renunciation of the crime prior to
         the commission of the offense, under the legal
         standard which I just described to you.


                                8
                 The presence of a renunciation as I have
            defined it does not have to be established to
            your satisfaction beyond a reasonable doubt.
            Instead a lesser standard of proof is what is
            required.   You can find renunciation if you
            are satisfied by a preponderance of the
            evidence or the greater weight of the evidence
            that [defendant] renounced the alleged crime
            of robbery as an accomplice.

       On the second day of jury deliberations, the jury found

defendant guilty as an accomplice to the first robbery committed

at PNC Bank (count two), N.J.S.A. 2C:15-1.    The jury found

defendant not guilty as an accomplice on count three with

respect to the second robbery at First Atlantic Bank, and also

not guilty on count one as to conspiracy to commit both

robberies.1   On September 2, 2010, the trial court sentenced

defendant to a ten-year prison term, with an eighty-five percent

period of parole ineligibility under the No Early Release Act,

N.J.S.A. 2C:43-7.2.

       Defendant appealed, arguing that the trial court’s decision

to issue the renunciation charge prejudiced his defense.2

Specifically, defendant contended that the court erred in

charging the jury on the affirmative defense because it was not


1 The jury heard conflicting statements about whether defendant
had any involvement in the second robbery. At trial, Fairley
testified that he wrote the ransom note for the second robbery
himself, without defendant’s input or awareness. Fairley
initially told detectives that defendant helped in composing the
notes for both robberies.

2   A second argument advanced is not relevant to this appeal.
                                  9
possible for defendant to meet the elements of renunciation as

he did not take any affirmative steps to prevent the commission

of the crime, let alone successfully thwart the crime.     The

Appellate Division affirmed defendant’s conviction in an

unpublished opinion.   Critical to the panel’s analysis was that,

in its view, the trial court “tailored the charge” and “declined

to charge the jury that defendant had the burden of proving

renunciation.”    The panel determined that there was sufficient

evidence in the record to justify the renunciation charge, and

that, when viewed in its totality, the charge neither prejudiced

defendant nor unfairly impinged on his defense strategy.

    We granted defendant’s petition for certification to

address the issue of whether it was proper for the trial court

to have given a jury charge on the affirmative defense of

renunciation.    State v. Daniels, 217 N.J. 588 (2014).   We also

granted amicus curiae status to the New Jersey Attorney General

(Attorney General).

                                II.

                                A.

    Defendant argues that issuance of a jury charge on the

affirmative defense of renunciation, over the objection of

defendant, is contrary to this Court’s direction in State v.

Walker, 203 N.J. 73 (2010).    Defendant cites Walker’s

proposition that when a defendant requests an affirmative

                                 10
defense, the trial court should provide the charge if the record

provides a rational basis for doing so; on the other hand, if

counsel does not request the affirmative defense, the court

should issue a charge on the affirmative defense sua sponte only

if all of the elements of the affirmative defense are clearly

indicated by the evidence.   Defendant points to State v. R.T.,

205 N.J. 493 (2011), as further support for his argument that a

“clearly indicated” standard was applicable in his circumstances

because he did not request the disputed affirmative defense

charge.   Under either a rational basis or clearly indicated

standard, defendant contends it was error for the trial court to

have given a renunciation charge because he plainly could not

satisfy all elements of the affirmative defense.

    According to defendant, the court mischaracterized his

statements about not wanting to participate in the robbery as

indicative of an attempted renunciation.   By coloring those

statements with the renunciation affirmative defense

instruction, defendant claims that the charge given by the court

prejudiced him.   Defendant’s trial defense maintained that he

did not intend to join in the robberies that Fairley committed.

The affirmative defense, defendant says, presumes complicity in

the robberies and therefore undermines that defense.

                               B.



                                11
    The State concedes that it was impossible for defendant to

meet the elements of renunciation and that the trial court was

aware of this impossibility.   However, the State argues that the

charge nonetheless was proper because the trial court

appropriately sought to provide the jury with guidance on how to

evaluate defendant’s potentially confusing statements about his

desire not to participate in the robberies.    Instead of allowing

the jury to formulate its own theory about renunciation and what

it requires, the State maintains that the trial court provided

pertinent information on the legal concept to avoid any

confusion.   The State contends that using the renunciation

charge for that purpose was reasonable because the jury could

plausibly conclude from the trial testimony that defendant

agreed to accompany Fairley to the robberies but then changed

his mind.

    Importantly, the State asserts that charging the jury with

renunciation did not prejudice defendant because the trial court

did not tell the jury that defendant had raised or requested the

charge, and the trial court did not charge that defendant had

the burden to prove renunciation.    The State further contends

that there was no prejudice because the trial court told the

jury it could use the information about defendant not wanting to

participate in the robbery for any purpose.

                               C.

                                12
    Amicus curiae, the Attorney General, argues that the

renunciation charge was proper because, absent that guidance to

the jury, there was too great a risk of confusion about

defendant’s statements that he did not want to be involved with

the robberies and the jury could have reached its verdict based

on speculation, misunderstanding, or confusion.     If defendants

were allowed to plant the seeds of an affirmative defense in the

jurors’ minds without the court actually explaining the legal

principles of such a defense, the Attorney General contends that

would allow for gamesmanship.   The Attorney General asserts that

defendant’s narrative thread clearly implicated the renunciation

defense, and at every opportunity.     The Attorney General

contends that there was no prejudice to defendant because the

trial court molded the jury instructions to the facts, and lack

of prejudice is evident from defendant’s acquittal on the

robbery count involving First Atlantic Bank and on the count of

conspiracy to commit robbery.

                                III.

    As this case requires examination of the impact of the

renunciation charge provided in defendant’s trial, we begin with

the basic principles of renunciation.

    Renunciation is an affirmative defense to accomplice

liability.   N.J.S.A. 2C:2-6(e)(3) and 2C:5-1(d).    Under

accomplice liability, the accomplice is “guilty of the same

                                 13
crime committed by the principal if he shares the same criminal

state of mind as the principal.”         State v. Whitaker, 200 N.J.

444, 458 (2009).   In accomplice liability cases, the jury must

be instructed on the necessary findings of a shared intent

between accomplice and principal and that the accomplice

directly or indirectly participated or assisted in the

commission of the criminal act.      State v. Bielkiewicz, 267 N.J.

Super. 520, 528 (App. Div. 1993).        However, under the defense of

renunciation, an actor is not guilty of accomplice liability if

he proves, by a preponderance of the evidence, that he abandoned

his efforts to commit the crime or otherwise prevented its

commission.   N.J.S.A. 2C:2-6(e)(3).        But, renunciation is not

complete when mere abandonment does not prevent the commission

of the crime.   N.J.S.A. 2C:5-1(d).       In such a case, defendant

must take affirmative steps to successfully prevent the

commission of the crime.    Ibid.

    Renunciation is also a defense to conspiracy, although it

has a slightly higher bar.    A renunciating co-conspirator must

prove, by a preponderance of the evidence, that after conspiring

to commit the crime, he subsequently informed the authorities

about the conspiracy and therein thwarted the crime or caused

the crime to be thwarted.    N.J.S.A. 2C:5-2(e).      In both

accomplice liability and conspiracy, the renunciation must be

complete and voluntary.     N.J.S.A. 2C:5-1(d) and 2C:5-2(e).      “To

                                    14
be voluntary, the abandonment of criminal conduct must reflect a

change in the defendant’s purpose or a change of mind that is

not influenced by outside circumstances.”     State v. Alston, 311

N.J. Super. 113, 121 (1998).   “To be complete the abandonment

must be permanent, not temporary or contingent.     And, of course,

the claimed renunciation must have resulted in avoidance of the

crime.”   Id. at 121-22.

    In the instant case, we must determine whether the trial

court erred in instructing the jury, over defense counsel’s

objections, on the affirmative defense of renunciation when

requested to do so by the State.     Appropriate and proper charges

to a jury are essential for a fair trial.     State v. Savage, 172

N.J. 374, 387 (2002).   That said, what is at stake here is not

simply whether a jury instruction was omitted, was improperly

molded to the facts, or was erroneously delivered.     Were any of

those the complained-of errors here, we would be guided by the

normal standard that “erroneous [jury] instructions on material

issues are presumed to be reversible error.”     State v. Marshall,

173 N.J. 343, 359 (2002).   Instead, we have the unusual

circumstance of a jury having been instructed on an affirmative

defense that defendant did not assert, did not want, and argued

was in conflict with his defense.     With that in mind, we turn to

the matter at hand.

                               IV.

                                15
    The State, defendant, and the Attorney General seek to find

support for their respective positions in this Court’s past

decisions that have addressed circumstances in which this Court

identified a trial court’s duty to instruct on an affirmative

defense in the absence of any request by the defendant.

Chiefly, two cases feature in the arguments made in this appeal.

    In Walker, supra, we set forth a standard for a trial court

to use when defense counsel requests an affirmative defense,

namely that the trial court should provide the requested charge

on the affirmative defense when there is a rational basis to do

so based on the evidence.    203 N.J. at 86-87 (applying lesser-

included offense principles and citing State v. Denofa, 187 N.J.

24, 42 (2006)).   However, we further stated that if defense

counsel does not request the charge, the court should still give

it when the evidence clearly indicates that it is appropriate.

Id. at 87.   The facts in Walker explain the Court’s reason for

providing guidance for such sua sponte court instructions on

non-requested affirmative defenses.

    In Walker, the defendant was charged with multiple crimes,

including first-degree murder, stemming from his involvement in

a robbery.   Id. at 77.   While the defendant and another co-

defendant carried out the robbery, the victim of the crime was

murdered.    Id. at 78-79.   At trial, the defendant testified that

he never intended to rob the victim.     Id. at 81.   He further

                                  16
stated that he had punched the victim only once in self-defense

and then waited for approximately five minutes, while in a state

of shock, as his co-defendant beat the victim.      Id. at 80-81.

The defendant contended that he never saw a weapon being used

and that he ran from the house before the victim was dead.       Id.

at 81.   On appeal, we held that it was error for the trial court

not to have sua sponte charged the jury on the statutory

affirmative defense to felony murder, because there was evidence

in the record pertaining to each of the elements of the

affirmative defense.    Id. at 89.3    Plainly, in the context of a

defendant who is arguing on appeal that he should have received

the benefit of an affirmative defense that was overlooked at

trial, the test of examining for “some evidence” of the elements

of the affirmative defense in order to justify the claim of

error is appropriate.    See ibid.     That was the proper quantum of

proof necessary to justify a claim of error advanced by a

defendant who lost the opportunity of benefiting from the

affirmative defense.    Ibid.   A different and more complicated

calculus pertains when reviewing a trial record for factual


3 That said, we determined in the context of that appeal that the
error did not constitute plain error requiring a new trial; the
error was not clearly capable of producing an unjust result
because the defendant had also been convicted of conspiracy,
robbery, reckless manslaughter, and possession of a knife. Id.
at 90-91. Based on those other convictions, this Court inferred
that the jury had “found against defendant on most, if not all,
of the four prongs of the [affirmative] defense.” Id. at 90.
                                  17
support for an affirmative defense that defendant did not

request and may have actively opposed.

       The following year we considered such circumstances in

R.T., supra, where the issue was whether a trial judge erred by

charging the jury, sua sponte, with a voluntary intoxication

instruction over defense counsel’s objection.     205 N.J. at 493.

Although our Court issued two opinions on the judgment in R.T.,

four justices concurred in the reasoning of Justice Long’s

concurrence, which agreed with the Appellate Division’s judgment

and utilized a clearly indicated standard when examining for the

factual presentation of an affirmative defense that was not

requested by counsel.     Id. at 509.   The appeal required a

careful, fact-specific analysis, which merits repeating.

       The defendant in R.T. was charged with, and convicted of,

various sexual assault offenses for abusing his nephew.         Id. at

494.    During the defendant’s initial interview with police, he

told detectives that he might have assaulted his nephew, but if

he did, it was because he was intoxicated at the time of the

assaults.   Id. at 495-97.    Later at trial, the defendant

completely denied assaulting his nephew and claimed that the

incriminating statements made to police were a result of

coercion.   Id. at 499.   The defendant’s prior inconsistent

statements were admitted into evidence, and the court raised

whether the jury should be charged on the affirmative defense of

                                  18
intoxication, noting that the record contained evidence about

the defendant drinking while possibly committing the assaults.

Id. at 501-02.   Defense counsel objected, arguing that such a

charge would be inconsistent with the defense.    Id. at 501-03.

The court decided to instruct the jury on the affirmative

defense of intoxication over defense counsel’s objection.      Id.

at 505.

    On appeal, the defendant challenged the trial court’s

intoxication instruction, and in a published opinion the

Appellate Division reversed and remanded the case for retrial,

stating that a charge should be given over a defendant’s

objection “only where the facts in evidence ‘clearly indicate’

the appropriateness of that charge.”     State v. R.T., 411 N.J.

Super. 35, 48 (App. Div. 2009).    The matter was appealed as of

right to this Court based on a dissent by a member of the

appellate panel.   See R. 2:2-1(a)(2).

    A three-justice concurrence allowed to stand the Appellate

Division judgment that the intoxication charge was improper and

prejudicial, and that it entitled the defendant to a new trial.

R.T., supra, 205 N.J. at 514-15 (Long, J., concurring).      The

concurrence stated that the defendant’s references to drinking

were vague and too attenuated to the actual crimes, and

concluded that the evidence was simply insufficient to support

an intoxication affirmative defense.     Id. at 513.   The Chief

                                  19
Justice concurred in that analysis, but dissented from the

Appellate Division judgment that had granted a new trial because

he viewed the error as harmless.       Id. at 515 (Rabner, C.J.,

concurring in part, dissenting in part).       Two Justices

dissented; they agreed with the reasoning of the appellate panel

member’s dissent, and concluded that the intoxication

instruction was neither prejudicial nor improper.       Id. at 517

(Rivera-Soto & Hoens, J.J., dissenting).

       Thus, although the Court in R.T. was split evenly on the

judgment, four justices, or a majority of the Court, agreed with

the analysis set forth in Justice Long’s concurrence.         That

opinion highlighted the potential danger of issuing an

affirmative defense over defense counsel’s objection, and

emphasized that “[i]n general . . . an affirmative defense

should not be imposed on an unwilling defendant.”       Id. at 511

(Long, J., concurring).    Justice Long’s concurrence added that

“[i]t goes without saying that a defendant who denies having

committed a crime should not be required to acknowledge, either

explicitly or inferentially, complicity in the event by way of a

compelled affirmative defense.”    Ibid.

       Importantly, the majority in R.T. identified a list of

factors for courts to consider when the record contains evidence

to support charging the jury on an affirmative defense.        Id. at

510.    Those factors include “whether counsel is surprised, how

                                  20
the case was tried, whether the defense is incompatible with

defendant’s position at trial, or whether the instruction would

prejudice the defense in some way.”      Ibid.   Although the factors

were derived from principles involved in determining whether to

charge a jury on lesser-included offenses, R.T. recognized that

unlike lesser-included offenses, which have public policy

implications,4 affirmative defenses generally are more

problematic because they have, “at their core, the notion that a

defendant has indeed committed the interdicted act but that he

should be excused from its consequences.”        Id. at 510-11 (citing

State v. Harmon, 104 N.J. 189, 209 (1986)).       Ultimately, R.T.

cautioned that a trial court’s decision whether to charge the

jury with an affirmative defense is fact-sensitive, requiring

“case-by-case analysis.”   Id. at 511.

     We do not agree with defendant that R.T. and other case law

requires that the analysis in this matter begin, and end, with

the threshold inquiry of whether the affirmative defense of

renunciation was clearly indicated on this record.       That

approach misstates R.T.’s required nuanced analysis.        R.T.

contemplated more than a matching of facts to the elements of a


4 See State v. Powell, 84 N.J. 305, 319 (1980) (acknowledging
that when record facts “would justify a conviction of a certain
charge, the people of this State are entitled to have that
charge rendered to the jury, and no one’s strategy, or assumed
(even real) advantage can take precedence over that public
interest”).
                                21
clearly indicated affirmative defense in order to assess whether

a trial court’s duty to inform and educate jurors in their

truth-seeking function has been satisfied.    It called for a

case-specific analysis.   And it did not declare that if a single

element of an affirmative defense is not satisfied, the court’s

duty to educate the jury evaporates.

    R.T. did not address how a court should approach a trial

narrative that imperfectly, or incompletely, matches an

affirmative defense but nonetheless may contain factual strands

that a jury might not know how to evaluate unless the court

provides an explanation of legal factors that relate those

disputed facts to both the elements of the crime and the

elements of the affirmative defense.    In such situations, it

behooves the court, with the participation of trial counsel, to

articulate a way for the jury to evaluate the facts as they have

been developed through competing presentations.   Although, for

the most part, a defendant is the master of his defense and a

court typically should not interpose a defense against his

wishes, a trial court is not limited to the stark choice of

giving an affirmative defense charge against a defendant’s

wishes, or no instruction at all.    Legal guidance that bears on

a jury’s proper assessment of the State’s and defense’s proofs

can be conveyed without resort to the affirmative defense

framework.

                                22
    Such an approach is particularly suited for accomplice

liability cases, which, courts have been told, require full,

accurate, and understandable instruction, regardless of whether

defense counsel requests the instruction.   See Bielkiewicz,

supra, 267 N.J. Super. at 527.   Here, the court sought to mold

an instruction to do just that, in recognition that the jury

could be confused about defendant’s statements telling Fairley

what to put into his robbery note while asserting that, both

before and after, he had scoffed at conducting a robbery and

said he wanted nothing to do with it.

    Defendant objected to referencing the affirmative defense

and offered no alternative.   His defense focused on the State’s

failure to prove that he formed the requisite intent to be an

accomplice to the robberies being planned by Fairley.   Despite

the court making every effort to balance the concerns of both

parties, in our view, the jury charge went too far because it

explained renunciation in greater detail than was necessary.

That created the impression that defendant had to dismantle a

strawman argument in order to advance his strategy that he never

formed the intent necessary for accomplice liability.

    In situations where a criminal trial record presents

evidence of an imperfect or incomplete defense, the trial court

must consider:   (1) the need to educate the jury on how to

evaluate evidence from a legal perspective, in keeping with the

                                 23
court’s responsibility to administer the justice system and the

jury’s truth-finding function; and (2) the need to protect a

defendant’s rights and not undermine the defense that has been

advanced at trial.   Although a defendant has a right to choose

the defense he will present, the court must be concerned about

the countervailing public consideration that all legal concepts

necessary for the jury’s truth-seeking function are presented to

the jury for the proper administration of justice.   A court

should assess a number of considerations when not all of the

elements of an affirmative defense are present and a defendant

resists the affirmative defense because it is asserted to be

inconsistent with his chosen defense.

    First, the nature and extent of the evidence before the

jury must be examined.   Questions such as how close the evidence

comes to establishing a defense, and whether the record contains

only an isolated reference to the defense’s essence or a

sustained theory throughout the trial are points to be

evaluated.

    Second, against the background of how the case was tried,

the court must carefully assess the risk of jury confusion, if

the jury receives no guidance, in light of the evidence and

arguments presented at trial.

    Third, the court should evaluate the factors identified in

R.T., supra, including whether counsel is surprised, how the

                                24
case was tried, and whether the potential instruction would be

incompatible with defendant’s position at trial or would

prejudice the defense in some way.     205 N.J. at 510.

    Notwithstanding that an affirmative defense is only

imperfectly presented in the trial record, the court may

conclude that it is appropriate to issue a modified jury charge

that instructs the jury on all important legal concepts that

relate to liability under the charged crimes.

                               V.

    In this matter, we are compelled to reverse defendant’s

conviction.   The jury instruction given over defendant’s

objection foisted on defendant an affirmative defense that he

did not want and could not meet, as the State and the trial

court all realized.   In the form in which it was delivered, the

instruction unfairly prejudiced defendant’s trial strategy.

From defendant’s perspective, the instruction drew the jury’s

attention away from his true defense -- that he never intended

to conspire or aid or assist in the commission of the crimes.

    Certainly, the record presented evidence of an incomplete

or imperfect set of facts viewed from the perspective of the

affirmative defense of renunciation.     The jury heard evidence

that could support that defendant was an accomplice:

defendant’s own statement and co-defendant Fairley’s testimony

included proof that defendant told Fairley what to include in

                                25
the robbery note.     But, there was also evidence of an incomplete

defense.   According to defendant, he initially told Fairley that

the idea of doing a robbery was crazy and repeatedly stated that

he did not want anything to do with any robbery Fairley was

contemplating.   Fairley’s trial testimony supported defendant’s

assertion; however, Fairley’s pretrial statements to detectives

undermined it.   The jury heard substantial evidence about

defendant’s incomplete demonstration of a renunciation defense

in Fairley’s cross-examination and in the State’s opening and

closing statements.    In assessing that factual record, the court

could reasonably conclude that there was a substantial risk of

jury confusion unless the jury was told that “abandonment alone

is not enough for acquittal” based on renunciation, provided the

jury was satisfied that the State proved that defendant’s intent

matched Fairley’s intent to commit the robberies.     A limited

charge to that effect would not have been incompatible with

defendant’s position at trial, and would have informed the jury.

    However, rather than such a streamlined charge, the jury

charge contained page after page of transcript that discuss

renunciation.    Even though the court emphasized that the State

had the burden of proving, beyond a reasonable doubt, each of

the elements of the crime, the court also told the jury that

defendant had a preponderance-of-the-evidence burden in

connection with the State’s proofs regarding the strawman

                                  26
argument of renunciation.   That approach was confusing and sent

mixed messages to the jury rather than elucidate principles that

were pertinent to the evidence.

    In sum, because the charge tracked renunciation principles

in full, defendant had to combat an unwanted affirmative defense

that was inconsistent with his defense.   We conclude that the

charge as given prejudiced the defense.   For the reasons

expressed, defendant’s conviction must be reversed.

                              VI.

    The judgment of the Appellate Division is reversed and the

matter is remanded to the trial court for further proceedings.



     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.




                                  27
                  SUPREME COURT OF NEW JERSEY

NO.       A-90                                SEPTEMBER TERM 2013

ON CERTIFICATION TO             Appellate Division, Superior Court



STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                 v.

RAYMOND DANIELS, a/k/a
RAYMOND DANIELSS, TOOKIE
DANIELS, RAYMOND DANIELLS,

      Defendant-Appellant.




DECIDED                February 10, 2016
                  Chief Justice Rabner                      PRESIDING
OPINION BY            Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                    REVERSE AND
 CHECKLIST
                                        REMAND
 CHIEF JUSTICE RABNER                        X
 JUSTICE LaVECCHIA                           X
 JUSTICE ALBIN                               X
 JUSTICE PATTERSON                           X
 JUSTICE FERNANDEZ-VINA              -----------------
 JUSTICE SOLOMON                             X
 JUDGE CUFF (t/a)                            X
 TOTALS                                       6
