In this case recently decided on appeal, it was held that the trial judge erred by not charging the jury on lesser included offenses, even though neither the defense attorney or prosecutor had requested that the lesser included offense be given to the jury.
State v. Rolando Betancourt, unpublished opinion, App. Div. Docket No. A-2981-07T4 (November 30, 2009) – Conviction for kidnapping reversed. “The court erred … in giving the jury no alternative but to find defendant either guilty or not guilty of kidnapping.
Neither attorney requested a jury instruction on a lesser-included offense under the kidnapping count, but the evidence here unquestionably called for a charge on criminal restraint…. Here, the evidence clearly allowed the jury to find defendant not guilty of kidnapping but guilty of criminal restraint.
The jury could have determined that the confinement of the victim was not for a substantial period as that phrase has been explained, or that defendant’s purpose in confining his wife was not to commit further assaults or to inflict further bodily injury on her.
At the same time, the jury could have determined from the evidence that defendant restrained his wife unlawfully in circumstances exposing her to risk of serious bodily injury, or held her under circumstances resulting in her belief that she was required to remain in the apartment, thus meeting the statutory definition of involuntary servitude. If the jury had reached those determinations from the evidence, the proper verdict would have been not guilty of first-degree kidnapping but guilty of third-degree criminal restraint.” (M. Virginia Barta, A.D.P.D.)