During an NJ Municipal Court trial, once it appears that the state cannot meet it's burden to prove its case, a municipal court judge will sometimes, on his or her own, attempt to change the charge to one the state is more likely to prove. Is this legal? No. Unless the amended charge is a "lesser-included" offense of the original charge.
Rule 7:14-2, "Amendment of process or pleading," provides:
The court may amend any process or pleading for any omission or defect therein or for any variance between the complaint and the evidence adduced at the trial, but no such amendment shall be permitted which charges a different substantive offense, other than a lesser included offense. If the defendant is surprised as a result of such amendment, the court shall adjourn the hearing to a future date, upon such terms as the court deems appropriate.
"Under the best of circumstances [the rule] does not permit an amendment if it 'charges a different substantive offense (other than a lesser included defense).'" State v. Burten, 219 N.J. Super. 339, 344 (Law Div. 1986). "It is unclear from the Rule or the Comments what is meant by a different substantive offense, but Words & Phrases and Black's Law Dictionary, 5 Ed., both define a "substantive offense" as follows: "A substantive offense is one of itself and not dependent upon another." Ibid.
"An offense qualifies as a lesser included offense only if the elements of the included offense are fewer in number than the elements of the greater offense, and only if the greater offense cannot be committed without also committing the lesser offense." State v. Parkins, 263 N.J. Super. 423, 426 (Law Div. 1993).
It is a recognized Rule that, where an accused is charged with a particular offense, he can not be convicted of another, unless the latter be included in the former. Ibid. This general Rule is given special emphasis where the penalties are different. Ibid. citing City of Toledo v. Soldier, 139 N.E. 2nd 631, 634 (Ohio 1956).
