Retrial on Lesser-Included Offense Ok following Acquittal on Greater Included – State v. Ruiz
This morning, the Appellate Division of Superior Court ruled that it is permissible under New Jersey law to retry a defendant on a lesser-included offense following his acquittal on the greater-included offense at trial. In State v. Ruiz, the defendant was indicted and tried for aggravated manslaughter. The evidence adduced during the trial would have also supported a finding of the lesser-included offense of reckless manslaughter. Accordingly, the judge charged the jury on both offenses.
The jury acquitted the defendant of the aggravated manslaughter charge but, following additional deliberations, hung on the charge of reckless manslaughter. The judge discharged the jury and authorized a retrial of the defendant on the lesser-included reckless manslaughter charge.
The Appellate Division held that a defendant who has been charged with a greater-included offense is on notice that he may also be prosecuted and convicted of any lesser-included offense under the statute. Neither the State or federal constitutions, nor issues of fundamental fairness preclude a retrial for the lesser-included offense.
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