                                                     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. R.P. (A-108-13) (073796)
Argued September 16, 2015 -- Decided December 14, 2015
SOLOMON, J., writing for a unanimous Court.
          In this appeal, the Court considers the circumstances under which a guilty verdict should be molded to
reflect a lesser-included offense.

          In June 2005, O.M. disclosed that her stepfather, R.P., began sexually abusing her when she was twelve
years old. The sexual abuse resulted in two pregnancies, one of which was terminated. The other pregnancy
resulted in the birth of M.M. when O.M. was sixteen or seventeen years old. Subsequent DNA testing showed that
M.M.’s profile was “consistent with that of an offspring” of O.M. and defendant. A Monmouth County Grand Jury
returned a superseding indictment charging defendant with the following: (1) first-degree aggravated sexual assault,
by committing an act of sexual penetration with O.M. when she was less than thirteen years old, contrary to N.J.S.A.
2C:14-2(a)(1) (count one); (2) first-degree aggravated sexual assault, by committing an act of sexual penetration
with O.M. while she was less than thirteen years old and while defendant was related to O.M. by affinity, contrary to
N.J.S.A. 2C:14-2(a)(2) (count two); (3) first-degree aggravated sexual assault, by committing an act of sexual
penetration with O.M., while using physical force or coercion and where O.M. sustained severe personal injury,
contrary to N.J.S.A. 2C:14-2(a)(6) (count three); and (4) second-degree sexual assault, by committing an act of
sexual penetration with O.M. while she was at least sixteen, but less than eighteen, years old, contrary to N.J.S.A.
2C:14-2(c)(3) (count four). After a jury trial, defendant was convicted of counts two, three, and four, but the jury
was unable to reach a verdict on count one. Thereafter, the court sentenced defendant to a twenty-six-year term of
incarceration, subject to a thirteen-year period of parole ineligibility.

         Defendant subsequently appealed, claiming that the trial court committed plain error when it failed to
charge the jury on second-degree sexual assault as a lesser-included offense of first-degree aggravated sexual assault
(count three). The Appellate Division panel determined that because there was sufficient evidence for the jury to
have convicted defendant of second-degree sexual assault, the trial court’s failure to issue such an instruction on
count three was plain error. The panel reversed the conviction on count three, remanded for a new trial on that
charge, and vacated defendant’s sentence. The panel did not comment on the State’s request that the verdict be
molded to reflect a conviction for second-degree sexual assault as to count three.

         The State sought reconsideration and clarification of the Appellate Division’s decision pursuant to Rule
2:11-6(a). Specifically, the State sought clarification as to whether the Appellate Division had considered its
contention that the verdict on count three should be molded to reflect a conviction for second-degree sexual assault.
The Appellate Division denied the State’s request for reconsideration and clarification without explanation.

          Defendant petitioned for certification, and the State cross-petitioned. This Court granted the State’s cross-
petition, limited to whether the Appellate Division was required to mold defendant’s guilty verdict for first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6), to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). 218 N.J.
272 (2014).
HELD: The Appellate Division erred when it denied the State’s request to mold the verdict because defendant was
given his day in court, all of the elements of sexual assault are included in the crime of aggravated sexual assault,
and defendant was not prejudiced.
1. In State v. Farrad, 164 N.J. 247 (2000), the Court recognized three factors that must be considered when determining
whether a verdict should be molded to a conviction for a lesser-included offense on which the jury was not instructed:
(1) defendant has been given his day in court; (2) all the elements of the lesser-included offense are contained in the
more serious offense; and (3) defendant’s guilt of the lesser-included offense is implicit in, and part of, a jury verdict.



                                                           1
In addition to these factors, several Appellate Division decisions have also considered whether molding the verdict will
prejudice defendant. (p. 7)

2. When the State requests, as it did here, that a verdict be molded, other jurisdictions have made prejudice a part of the
analysis. In Allison v. United States, 409 F.2d 445 (D.C. Cir. 1969), the United States Court of Appeals for the District
of Columbia Circuit reversed the appellant’s conviction and remanded for entry of judgment on a lesser-included
offense because the evidence offered at trial failed to support one or more elements of the crime of which appellant was
convicted, such evidence sufficiently sustained each of the elements of another offense, the latter was a lesser-included
offense of the former, and no undue prejudice would result to the appellant. (p. 8)

3. Here, in count three, defendant was charged with first-degree aggravated sexual assault in violation of N.J.S.A.
2C:14-2(a)(6), which provides that a person is guilty of first-degree aggravated sexual assault if he or she: (1) commits
an act of sexual penetration with another person; (2) through the use of physical force or coercion; and (3) severe
personal injury is sustained by the victim. N.J.S.A. 2C:14-2(c)(1) states that an actor is guilty of second-degree sexual
assault if he or she: (1) commits an act of sexual penetration with another person; (2) using physical force or coercion,
but the victim does not sustain severe personal injury. All of the elements of sexual assault are included in aggravated
sexual assault. Therefore, because the jury found defendant guilty of count three, it also found beyond a reasonable
doubt that defendant was guilty of all the elements of second-degree sexual assault. Further, the record does not
suggest that defendant’s strategy at trial would have differed had he been tried on the lesser-included offense of second-
degree sexual assault. (pp. 9-10)

4. The Court reaffirms the test established in Farrad and incorporates the approach taken by the Court of Appeals for the
District of Columbia Circuit in Allison. Considerations of judicial economy and efficiency, fairness to the State, and
the right of crime victims and witnesses to have the inconveniences associated with participation in the criminal justice
process minimized may be relevant when determining whether the State’s request to mold a verdict should be granted.
However, where no undue prejudice will result to the accused, such considerations will not alter the outcome. (p. 11)
          The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for
entry of a judgment against defendant on the lesser-included offense of second-degree sexual assault and for
resentencing.
        CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA did
not participate.




                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                       A-108 September Term 2013
                                                 073796

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

         v.

R.P.,

     Defendant-Respondent.


         Argued September 16, 2015 – Decided December 14, 2015

         On certification to the Superior Court,
         Appellate Division.

         Paul H. Heinzel, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for appellant (Christopher J.
         Gramiccioni, Acting Monmouth County
         Prosecutor, attorney; Mr. Heinzel and Mary
         R. Juliano, Special Deputy Attorney General/
         Acting Assistant Prosecutor, of counsel and
         on the briefs).

         Al Glimis, Assistant Deputy Public Defender,
         argued the cause for respondent (Joseph E.
         Krakora, Public Defender, attorney).


     JUSTICE SOLOMON delivered the opinion of the Court.

     In this appeal, the Appellate Division vacated defendant’s

conviction for first-degree aggravated sexual assault because

the trial court failed to charge the jury on the lesser-included

offense of second-degree sexual assault.   In doing so, the

Appellate Division denied, without comment, the State’s request


                                1
that the verdict be molded, and the panel remanded for a new

trial on first-degree aggravated sexual assault.   We are called

upon to determine the propriety of that determination.   Because

we conclude that defendant was given his day in court, that all

the elements of sexual assault are included in the crime of

aggravated sexual assault, and that there was no prejudice to

defendant, we reverse the judgment of the Appellate Division and

remand the matter to the trial court for entry of judgment

against defendant on the lesser-included offense of second-

degree sexual assault (count three) and for resentencing.

                                I.

     The record reveals the following.   In June 2005, O.M.1

disclosed that her stepfather, defendant R.P., had sexually

abused her beginning when she was twelve years old.   The abuse

resulted in two pregnancies, one of which was terminated and one

of which resulted in the birth of M.M. when O.M. was sixteen or

seventeen years old.   Following an investigation, including DNA

testing of O.M., M.M., and defendant, which showed that M.M.’s

DNA profile was “consistent with that of an offspring” of O.M.

and defendant, a Monmouth County Grand Jury returned a

superseding indictment charging defendant with first-degree




1 Consistent with the Appellate Division opinion, we utilize
initials to protect the anonymity of the victim and others.
                                 2
aggravated sexual assault, by committing an act of sexual

penetration with O.M. while she was less than thirteen years

old, contrary to N.J.S.A. 2C:14-2(a)(1) (count one); first-

degree aggravated sexual assault, by committing an act of sexual

penetration with O.M. while she was at least thirteen but less

than sixteen years old, and defendant was related to O.M. by

affinity, contrary to N.J.S.A. 2C:14-2(a)(2) (count two); first-

degree aggravated sexual assault, by committing an act of sexual

penetration with O.M. while using physical force or coercion,

and O.M. sustained severe personal injury, contrary to N.J.S.A.

2C:14-2(a)(6) (count three); and second-degree sexual assault,

by committing an act of sexual penetration with O.M. while she

was at least sixteen but less than eighteen years old, contrary

to N.J.S.A. 2C:14-2(c)(3) (count four).

    Following a jury trial, defendant was convicted of first-

degree aggravated sexual assault (count two), first-degree

aggravated sexual assault (count three), and second-degree

sexual assault (count four); the jury was unable to reach a

verdict on count one, first-degree aggravated sexual assault.

Defendant was sentenced to a twenty-six-year aggregate term of

imprisonment with a thirteen-year period of parole

ineligibility.

    Defendant appealed, contending, among other things, that

the trial court committed plain error by failing to charge the

                                3
jury on second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), as

a lesser-included offense of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a)(6) (count three).     The appellate

panel determined that because there was sufficient evidence for

the jury to have convicted defendant of second-degree sexual

assault, the trial court’s failure to issue such an instruction

on count three was plain error.    The panel reversed the

conviction on count three, remanded for a new trial on that

charge, and vacated defendant’s sentence.     The panel did not

comment on the State’s request that the verdict be molded to

reflect a conviction for second-degree sexual assault, N.J.S.A.

2C:14-2(c)(1), as to count three.

    The State moved for reconsideration and clarification of

the Appellate Division’s decision pursuant to Rule 2:11-6(a).

Specifically, the State sought clarification as to whether the

Appellate Division considered the State’s contention that the

verdict on count three should be molded to a conviction for

second-degree sexual assault.     The Appellate Division denied

reconsideration without explanation.

    Defendant petitioned for certification, and the State

cross-petitioned.   This Court granted only the State’s cross-

petition, “limited to the issue of whether the Appellate

Division was required to mold defendant’s guilty verdict for

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6),

                                  4
to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).”     218

N.J. 272 (2014).

                                II.

    The State claims that when a conviction is reversed for

failure to charge on a lesser-included offense, New Jersey

courts consistently afford the State the option of choosing a

molded verdict or retrial on the greater offense, citing to

State v. Greenberg, 154 N.J. Super. 564, 567-68 (App. Div.

1977), certif. denied, 75 N.J. 612 (1978).     Alternatively, the

State asserts that if the Appellate Division’s decision to

impose a molded verdict or remand for retrial was discretionary,

the panel’s refusal to do so without explanation was arbitrary

because the State satisfied the requirements established by this

Court in State v. Farrad, 164 N.J. 247, 266 (2000).

    The State argues that all of the elements of second-degree

sexual assault are included in first-degree aggravated sexual

assault; the only difference between the offenses is that

aggravated sexual assault requires a showing of “severe personal

injury.”   N.J.S.A. 2C:14-2(a)(6).    The State posits that where

the jury verdict constitutes a finding that all of the elements

of a lesser-included offense have been proven, it is error for

the court to refuse the State’s request for a molded verdict if

prejudice to the defendant will not result.



                                 5
    Defendant contends that Farrad, supra, 164 N.J. at 266,

permits, but does not require, a verdict to be molded in

appropriate circumstances.   Defendant argues that the Appellate

Division did not abuse its discretion by remanding for a new

trial on count three, in part, because the assistant prosecutor

specified, in response to the trial court’s inquiry regarding

the contents of the charge, that the State did not want the jury

charged on any lesser-included offenses.   Therefore, defendant

submits, the State is “at least partially responsible” for any

error.

    Defendant suggests that, if needed, this matter be resolved

by remand to the Appellate Division for application of the

Farrad test, or by upholding the Appellate Division’s decision

because the panel correctly declined the State’s invitation to

mold the verdict on count three.

                               III.

    The principles guiding us here were set forth by this Court

in Farrad, supra, 164 N.J. at 265-66, which provides that the

authority to mold a verdict rests upon a trial court’s “‘power

to enter a judgment of conviction for a lesser included offense

where the jury verdict necessarily constitutes a finding that

all the elements of the lesser included offense have been

established and where no prejudice to the defendant results.’”



                                   6
Id. at 266 (quoting Greenberg, supra, 154 N.J. Super. at 567-

68).

       In Farrad, we recognized three factors to be considered in

determining whether a verdict should be molded to a conviction

for a lesser-included offense where a jury was not instructed on

that offense: “(1) defendant has been given his day in court,

(2) all the elements of the lesser-included offense are

contained in the more serious offense and (3) defendant’s guilt

of the lesser-included offense is implicit in, and part of, the

jury verdict.”   2   Ibid. (internal quotation marks omitted).

However, a verdict may not be molded where doing so would

require a court to speculate about the jury’s findings.     State

v. Federico, 103 N.J. 169, 177 (1986); see also State v. Dixon,

125 N.J. 223, 284 (1991) (Handler, J., dissenting).

       In addition to the three factors articulated in Farrad,

decisions of the Appellate Division have considered in their

analysis whether molding the verdict will prejudice the

defendant.   See State v. Viera, 346 N.J. Super. 198, 217 (App.

Div. 2001), certif. denied, 174 N.J. 38 (2002); Greenberg,

supra, 154 N.J. at 567-68; State v. Hauser, 147 N.J. Super. 221,



2 While we did not expressly include prejudice as a factor to be
considered when molding a verdict in Farrad, we declined to mold
the verdict there because the trial court’s error in permitting
the use of other-crimes evidence mandated a retrial in light of
the resulting prejudice to the defendant.
                                   7
228 (App. Div.) (”This court has the power to enter a judgment

of conviction for a lesser included offense where the jury

verdict, of necessity, constitutes a finding that all the

elements of a lesser included offense have been properly

established and no prejudice to the defendant will result . . .

.” (citing State v. Washington, 60 N.J. 170, 173 (1972)

(additional citations omitted))), certif. denied, 75 N.J. 27

(1977).

     Although this Court has not expressly included prejudice to

a defendant as a consideration when the State requests, as it

did here, that a verdict be molded, other jurisdictions have

expressly made prejudice a part of that analysis.   For example,

the United States Court of Appeals for the District of Columbia

Circuit in Allison v. United States, 409 F.2d 445 (D.C. Cir.

1969), reversed the defendant’s conviction and remanded for entry

of judgment on a lesser-included offense based upon the

following considerations:

          (1) that the evidence adduced at trial fails
          to support one or more elements of the crime
          of which appellant was convicted, (2) that
          such evidence sufficiently sustains all the
          elements of another offense, (3) that the
          latter is a lesser included offense of the
          former, and (4) that no undue prejudice will
          result to the accused.

          [Id. at 450-51.]




                                8
The court “perceive[d] no possible prejudice to [the defendant]

as a result” of this disposition because the defendant had full

notice of his potential conviction for the lesser crime and

there was no indication that the defense strategy would have

been altered had the defendant initially been tried only on the

lesser-included charge.   Id. at 451; see also United States v.

Hunt, 129 F.3d 739, 745-46 (5th Cir. 1997) (finding modification

of judgment permissible despite fact that trial court did not

instruct jury on lesser-included offense and modification would

not result in undue prejudice to defendant); United States v.

Smith, 13 F.3d 380, 383 (10th Cir. 1993) (same); Shields v.

State, 722 So. 2d 584, 586-87 (Miss. 1998) (same).

    With those principles in mind, we consider whether the

Appellate Division was required to mold defendant’s verdict

here.

                                IV.

                                 A.

    Defendant was charged with first-degree aggravated sexual

assault, in violation of N.J.S.A. 2C:14-2(a)(6), which provides

that a person is guilty of first-degree aggravated sexual

assault if he or she: (1) commits an act of sexual penetration

with another person; (2) through the use of physical force or

coercion; and (3) severe personal injury is sustained by the

victim.   N.J.S.A. 2C:14-2(c)(1) states that an actor is guilty

                                 9
of second-degree sexual assault if he or she: (1) commits an act

of sexual penetration with another person; (2) using physical

force or coercion, but the victim does not sustain severe

personal injury.   Therefore, all of the elements of sexual

assault are included in aggravated sexual assault.

    Because the jury found defendant guilty of count three,

“the crime of aggravated sexual assault by committing an act of

sexual penetration with [O.M.] while using physical force or

coercion and [O.M.] sustained severe personal injury,” the jury

found beyond a reasonable doubt that defendant was guilty of all

the elements of sexual assault.     Furthermore, the record does

not suggest, nor can defendant argue in light of his request

that the jury be charged on second-degree sexual assault, that

his strategy would have differed had he been tried on the

lesser-included offense of second-degree sexual assault.

Clearly, defendant was given his day in court and does not claim

otherwise.

                               B.

    In Farrad, supra, we held that a guilty verdict may be

molded to convict a defendant of a lesser-included offense -–

even where the jury was not instructed on that offense -– if the

following three factors are met: “(1) defendant has been given

his day in court, (2) all the elements of the lesser-included

offense are contained in the more serious offense and (3)

                                  10
defendant’s guilt of the lesser-included offense is implicit in,

and part of, the jury verdict.”       164 N.J. at 266.   We reaffirm

the test established in Farrad, and incorporate the approach

taken by the Court of Appeals for the District of Columbia

Circuit in Allison, supra, 409 F.2d at 450-51.       Thus, we

conclude that when all three Farrad factors are met and “no

undue prejudice will result to the accused,” the State’s request

for a molded verdict should be granted.       Id. at 451.

    We are mindful that other considerations may be relevant to

determining whether the State’s request to mold a verdict should

be granted where a defendant establishes prejudice.         Those

considerations include judicial economy and efficiency, fairness

to the State, and the right of crime victims and witnesses “[t]o

have inconveniences associated with participation in the

criminal justice process minimized to the fullest extent

possible.”    N.J.S.A. 52:4B-36(d).    However, where “no undue

prejudice will result to the accused,” such considerations will

not alter the outcome.

                                  V.

    For the reasons set forth above, we find the Appellate

Division erred in denying the State’s request to mold the

verdict.     Therefore, the judgment of the Appellate Division is

reversed.    The matter is remanded to the trial court for entry

of judgment against defendant on the lesser-included offense of

                                  11
second-degree sexual assault (count three) and resentencing

consistent with this opinion.



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




                                12
        SUPREME COURT OF NEW JERSEY


NO.       A-108                                SEPTEMBER TERM 2013

ON CERTIFICATION TO             Appellate Division, Superior Court



STATE OF NEW JERSEY,

        Plaintiff-Appellant,

                v.

R.P.,

        Defendant-Respondent.




DECIDED                 December 14, 2015
                  Chief Justice Rabner                      PRESIDING
OPINION BY             Justice Solomon
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
