On appeal from the Superior Court, Law Division, Union County.
Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).
[205 NJSuper Page 386] Defendant was indicted for second degree aggravated arson in violation of N.J.S.A. 2C:17-1a. At the end of the case, and following denial of defendant's motion for judgment of acquittal, the trial judge indicated without request that he would submit the case to the jury on the basis of "accomplice" liability. He did so over defendant's strong objection. In his charge the judge explained to the jury that defendant could not be convicted as a principal but could be found guilty only if the State proved, beyond a reasonable doubt, either second degree aggravated arson or third degree arson, see N.J.S.A. 2C:17-1b (a lesser included offense, N.J.S.A. 2C:1-8d), and the requisite purpose to facilitate the commission of the crime. See N.J.S.A.
2C:2-6. The court carefully explained the distinction between second and third degree arson and indicated that defendant could be convicted of either offense if the State proved, beyond a reasonable doubt, the elements of the offense and the requisite purpose to act as an accomplice in furtherance of its commission.*fn1
Defendant was convicted of third degree arson and was sentenced to five years probation conditioned upon performance of 300 hours of community service and payment of restitution,
a $5,000 fine and $25 penalty. On this appeal, he contends that the conviction must be vacated because he was not indicted or given notice that he was to be tried as an accomplice and that, in any event, the proofs did not warrant a charge on accomplice liability or his conviction as an accomplice. He also contends that the trial court erroneously denied his motion for a new trial.
We reject defendant's contention that an indictment must allege accomplice liability as a prerequisite to trial and consideration of liability on that basis. We hold that the Code of Criminal Justice continued pre-Code law to the effect that accomplice liability need not be alleged in the indictment. See e.g., State v. Western Union Telegraph Co., 12 N.J. 468, 495 (1953), app. dism. 346 U.S. 869, 74 S. Ct. 124, 98 L. Ed. 379 (1953); State v. Cooper, 10 N.J. 532, 568 (1952); State v. Loughrey, 149 N.J. Super. 264, 268 (App.Div.1977); State v. Jacques, 99 N.J. Super. 230, 235-236 (App.Div.1968), aff'd 52 N.J. 481 (1968). See also N.J.S.A. 2C:1-1e, :1-8d, e, :2-6; II New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission 56 (1971).
We further hold that where the evidence indicates a rational basis for accomplice liability, the judge can charge the jury on that basis even though the indictment does not expressly allege a violation of N.J.S.A. 2C:2-6. We agree with defendant, however, that the proofs must warrant presentation of the case to the jury on accomplice liability. See N.J.S.A. 2C:1-8e;*fn2
State v. Jacques, supra. Where the facts warrant such an instruction, the court may give it even without request of either party. See State v. Powell, 84 N.J. 305, 318 (1980); compare State v. Choice, 98 N.J. 295, 298-299 (1985). Of course, the position of the parties should be considered, cf. State v. Choice, supra at 298-301, and here the prosecutor had no objection. Moreover, the court should indicate its intention to so charge, with or without request, before summations, as the judge did here. Cf. R. 1:8-7. In this way the parties can prepare to comment on the issue of accomplice liability during summations.
Our review of the record satisfies us that there were sufficient inferences of accomplice liability to justify the instruction given and that there was no unfair lack of notice to defendant. See State v. Talley, 94 N.J. 385, 391-394 (1983); State v. Saulnier, 63 N.J. 199, 208-209 (1973).*fn3 This is particularly true in light of the testimony concerning defendant's inquiry to Mr. Piccoli regarding whether he could find someone to "torch the building" for 5% of the insurance proceeds, the timing of payment of premiums and amounts of coverage, the financial condition of defendant's business on the premises, the limited access to the basement door which was unlocked and a statement attributed to defendant that he was "going out of business."
Accordingly, we believe that the charge was proper and that the motion for new trial was properly denied, substantially for the ...