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NJ Prosecutor Not Allowed to Amend Indictment in Recent Criminal Appeal


by in Criminal Defense

State v. R.F., unpublished opinion, App. Div. Docket No. A-4969-09T4 (December 15, 2010) – Order denying State’s request to amend the indictment affirmed. “[T]he State moved to amend the indictment to include an additional count of first-degree aggravated sexual assault that it claimed had been ‘true billed’ by the grand jury but omitted from the filed indictment due to ‘an administrative error.’… In this case, the change requested by the State goes beyond an ordinary ‘amendment of form.’ Courts have permitted the State to make such modifications only where minor and non-prejudicial to the defendant…. Here, however, the requested amendment neither adds a lesser included offense nor ‘correct[s] an error in form or the description of the crime intended to be charged.’ R. 3:7-4. Instead, the State seeks to add a separate count that was omitted from the indictment. The reasons for this omission are immaterial because the indictment itself, rather than a grand jury transcript, is the operative document to put defendant on notice of the charges against him…. In view of the foregoing, we conclude that the proposed amendment is one of substance rather than form.”






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