Incomplete mistake of fact as a defense – State v. Pena

Let assume that you fly down to Houston to smuggle stolen furs back to New Jersey. While you’re there, the guys you’re working with take the furs out of your suitcase without telling you, and secretly put in 15 kilos of cocaine.

So, now after the cops catch you the next day at the airport in Newark and you’re indicted for drug distribution, can you argue to the find-finder at trial that you should only be found guilty of theft by receiving stolen property because that is the crime you thought you were committing?

The prosecutor argues that theft by receiving stolen property is not a lesser-included offense of drug distribution and that the defendant was not even indicted for that theft offense.

Yesterday, the Supreme Court ruled that under the doctrine of “incomplete mistake of fact”, a defendant may argue such a defense to a jury and be found guilty of a non-lesser-included, non-indicted offense.

Download State v. Pena

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