State v. Keith V. Cuff (080753) (Camden County and Statewide) (A-79-17; 080753)
The omission of second-degree kidnapping from the verdict sheet does not constitute plain error. The jury instruction accurately described the State’s burden of proof with respect to the elements of both first-degree and second-degree kidnapping, and directed the jury to consider second-degree kidnapping as a lesser-included offense if it did not find defendant guilty of the first-degree offense. Moreover, the evidence presented at trial did not provide a rational basis for a second-degree kidnapping conviction because the victims were not “release[d] . . . unharmed and in a safe place,” an element of the second-degree offense. N.J.S.A. 2C:13-1(c). Defendant was properly convicted of three counts of first-degree kidnapping. As to the sentence, the Court agrees with the Appellate Division that the terms imposed for most of defendant’s offenses constituted a proper exercise of the trial court’s discretion but concludes that the trial court should resentence defendant so that it may consider whether certain offenses committed within the same criminal episode warrant concurrent rather than consecutive sentences, as well as whether the decision to make the sentences consecutive rather than concurrent made the aggregate sentence imposed on defendant an abuse of discretion.
