dissenting.
This case requires us to review one of the more difficult decisions a trial judge must make in a criminal trial—the decision to give a charge that is objected to by counsel, a decision which, the majority acknowledges, was given thoughtful consideration by the judge in this ease. Taking stock of defendant’s own statements that his intoxication played a role in the sexual assaults charged, the trial court determined that an instruction on voluntary intoxication was needed to guide the jury in its deliberations. This was a reasonable exercise of discretion that comported with the trial court’s duty to give a “road map” of instructions applicable to the evidence the jury had to evaluate. Nonetheless, because defense counsel objected, the majority concludes that the instruction could only be given “where the facts in evidence ‘clearly indicate’ the appropriateness of that charge,” and that, therefore, the trial court committed reversible error. However, counsel’s objection failed to articulate cognizable prejudice and rested upon an erroneous legal premise. In concluding that the instruction was reversible error, the majority relies upon authorities that measured and rejected claims of plain error in clearly distinguishable circumstances. That reliance is misplaced and expands the application of the “clearly indicated” standard well beyond its roots. Further, because this was a “road map” instruction rather than one charging a lesser-included offense, the evidence necessary to justify the charge is measured far more liberally and was sufficient here. Finally, the alleged error in the chai’ge was isolated and neither rendered the charge as a whole misleading nor led the jury to an unjust result. For these reasons, I respectfully dissent.1
I
The task for the trial court would be infinitely easier if we allowed the court to defer completely to the expressed requests of *55counsel. But that is not the trial court’s obligation. We charge the trial court with the “absolute duty to instruct the jury on the law governing the facts of the case.” State v. Concepcion, 111 N.J. 373, 379, 545 A.2d 119 (1988) (emphasis added). The jury charge is “a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.” State v. Savage, 172 N.J. 374, 387, 799 A.2d 477 (2002). Because jurors are free to accept or reject, in part or in whole, any aspect of testimonial evidence based on credibility, State v. Coleman, 46 N.J. 16, 43, 214 A.2d 393 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966); State v. Conway, 193 N.J.Super. 133, 150, 472 A.2d 588 (App.Div.), certif. denied, 97 N.J. 650, 483 A.2d 174 (1984), the charge must provide “a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.” State v. Koskovich, 168 N.J. 448, 508, 776 A.2d 144 (2001) (emphasis added) (quoting Concepcion, supra, 111 N.J. at 379, 545 A.2d 119 and State v. Green, 86 N.J. 281, 287-88, 430 A.2d 914 (1981)).
The evidence here included two versions of the facts provided by defendant. In defendant’s statement to the police, he admitted that he probably committed the sexual assaults based upon the statement of his nephew, L.T., but did so when he was drunk. At trial, he denied sexually assaulting his nephew and explained that his prior admissions were the product of police coercion. The jury was bound to determine which of these versions to accept and which to reject. If the jury found the statement to the police more credible than defendant’s testimony at trial, it needed the legal principles necessary to evaluate the evidence of intoxication. By providing a charge on voluntary intoxication, the trial court discharged its “absolute duty” to equip the jury with those principles.
Nonetheless, the majority concludes that a charge to which a defendant objects should be given “only where the facts in evidence ‘clearly indicate’ the appropriateness of that charge.” The “clearly indicated” standard employed can be traced to dicta in *56State v. Powell, 84 N.J. 305, 318, 419 A.2d 406 (1980) (“[W]here the facts clearly indicate the possibility that the crime was manslaughter based upon either provocation/passion or imperfect self-defense, we see no reason why the trial judge should not also be obliged [to give the instruction], even without any request____”) (emphasis added). While the Supreme Court spoke of evidence that clearly indicated the possibility of a lesser offense, the majority raises the bar higher by measuring the sufficiency of the evidence required to justify the charge against what is necessary for a successful intoxication defense.
The authorities relied upon do not support this interpretation or the proposition that a defense objection precludes the tidal court from giving any charge unless its appropriateness is clearly indicated by the evidence. The application of the “clearly indicated” standard in these cases is distinguishable in two important ways.
First, the nature of the judicial action reviewed is entirely different. In Powell and the cases that followed, the Supreme Court defined what quantum and quality of evidence rendered a trial court’s failure to give a charge sua sponte plain error. In each case, the court found no plain error in the failure to act sua sponte. See State v. Vasquez, 265 N.J.Super. 528, 628 A.2d 346 (App.Div.), certif. denied, 134 N.J. 480, 634 A.2d 527 (1993) (failure to charge self-defense in murder case sua sponte was not plain error); State v. Choice, 98 N.J. 295, 486 A.2d 833 (1985) (where Appellate Division had reversed conviction on grounds that it was plain error for trial court to fail to give manslaughter charge sua sponte, Supreme Court reversed and reinstated conviction because manslaughter was not “clearly indicated” by evidence); State v. Perry, 124 N.J. 128, 162-63, 590 A.2d 624 (1991) (failure to charge passion/provocation manslaughter and self-defense sua sponte was not plain error). Similarly, in State v. Cameron, 104 N.J. 42, 514 A.2d 1302 (1986), the Court concluded that the evidence was insufficient “to require the trial court to charge the jury on *57defendant’s intoxication, as defendant requested.” Id. at 44, 514 A.2d 1302 (emphasis added).
None of these cases concluded that a trial court committed reversible error in giving a “road map” instruction of legal principles to assist the jury in navigating through the evidence. While the cases limit the duty of the trial court to act sua sponte, none of the cases suggest a coterminous limitation on the trial court’s discretion to charge the jury regarding the evidence. Plainly, the quantum and quality of evidence sufficient to require an instruction will be greater than the evidence that would support a trial court’s exercise of discretion in determining that instructions were necessary to guide the jury in its deliberations. Therefore, these cases cannot be read as limiting judicial discretion to evaluate what instructions are appropriate based upon the evidence in the case.
Second, the “clearly indicated” standard first discussed in Powell was applied to the question whether a lesser-included offense should be charged.2 Unlike the challenged instruction here, the trial court’s discretion to charge a lesser-included offense over the defendant’s objection is circumscribed by both constitutional and statutory requirements. Article I, Paragraph 8 of the New Jersey Constitution provides,
No person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury.
As a result, a charge that is not “fairly included” in the indictment cannot be presented to the jury unless the defendant waives his constitutional right and agrees to proceed without indictment. State v. Thomas, 187 N.J. 119, 129-133, 900 A.2d 797 (2006); State v. Ciuffreda, 127 N.J. 73, 76, 602 A.2d 267 (1992). N.J.S.A. 2C:1-8(e) imposes an additional condition:
*58The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.
To satisfy this condition, the evidence must present a rational basis for a jury to acquit on the greater charge but convict on the lesser included charge. See State v. Jenkins, 178 N.J. 347, 361-364, 840 A.2d 242 (2004); State v. Garron, 177 N.J. 147, 180, 827 A.2d 243 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed.2d 1204, (2004); State v. Messino, 378 N.J.Super. 559, 581, 876 A.2d 818 (App.Div.), certif. denied, 185 N.J. 297, 884 A.2d 1266 (2005). See also N.J.S.A. 2C:1-8; Cannel, New Jersey Criminal Code Annotated, comment 12 on N.J.S.A. 2C:1-8 (2008).
Even while noting the “possible complexities at the trial level in a criminal matter that may arise from a [lesser-included] charge not requested by any of the parties,” the Supreme Court recognized that
the decisions of their counsel were not the only interests involved in a criminal matter; that the public interest, especially in a criminal case, may go well beyond the interests of the parties.
[Choice, supra, 98 N.J. at 301, 486 A.2d 833 (citing Powell, supra, 84 N.J. at 319, 419 A.2d 406).]
The “balancing of these various interests” remained the province of the trial court. Ibid. See also Green, supra, 86 N.J. at 289-290, 430 A.2d 914 (court may exercise broad discretion on whether to grant certain types of requests to charge the jury); State v. Speth, 324 N.J.Super. 471, 474, 735 A.2d 1200 (Law Div.1997) (“[T]he trial judge must retain such general discretion over the conduct of the proceedings as is necessary to insure a fair trial”). Therefore, the mere fact of an objection does not invariably trump the discretion of the trial court, even when these constitutional and statutory constraints are in place.
Since the trial court’s decision here did not involve the propriety of charging a lesser-included offense, these constraints on judicial discretion did not apply. Nonetheless, the majority applies the restrictive “clearly indicated” standard without considering the incursion upon judicial discretion posed by a mechanical applica*59tion of the standard or that the result represents a significant expansion beyond its original context.
II
The majority finds the evidence of intoxication deficient because, in part, it lacks such details as blood alcohol content, the exact amount of alcohol consumed or the precise hours spent drinking prior to the offense. This criticism fails to consider that the sexual assaults for which defendant was convicted occurred over a period of six years, starting when L.T. was approximately four years old. As the precise dates of these assaults were unknown, the details that might be available for one discrete crime could not reasonably be expected to be available. Therefore, the absence of these details should not preclude the trial court from giving an instruction on intoxication if there is other evidence for the jury to consider.
There was evidence of a pattern of drinking to the point of intoxication that was associated with the criminal behavior charged. In surveying the facts, the trial court could not ignore defendant’s statement to the police.3 In that statement, defendant acknowledged that he drank four to eight beers on a daily basis, to get a “buzz but at time it must be half way drunk.”
Defendant never unequivocally admitted or denied the allegations but instead, faulted his intoxication for the fact that the allegations were made, the likelihood that the assaults occurred and his lack of recollection of them.
He stated that the allegations against him were the “results of me probably drunk, of me drinking.” He denied ever thinking of the victim in a sexual way when sober: “Not with no clear head I didn’t never did, no.” Yet, conceding that it was possible that the *60assaults occurred, he explained, “I was drinking and something sick like that happened so, yeah I feel it very possible.” Defendant also explained that the assaults occurred at night because that was “while I’m drinking.” He also stated that he was intoxicated when he assisted the victim in using the bathroom at night and may have had his hand touch the victim’s penis but did not recall “either inserting [his] penis [or finger] into [the victim’s] butt....”
Defendant repeatedly stated that he did not remember doing any of the acts alleged. For example, he states:
I might have had sexual intercourse with him, yeah. I really can’t remember so I might have been very intoxicated at the time.
[I]t’s going to be a possibility of me doing that but like I said but being drunk remember but if he recalls then I must did.
His continuing and apparently conflicting allusions to a lack of recollection and to the possibility that the sexual abuse occurred led to this exchange:
Q. But then you keep saying you don’t recall but you already [said] it’s a possibility that you did it. Are you saying you can’t recall as an excuse?
A. No, I’m not. I’m saying I can’t recall cause I don’t remember it but the possibility if I was drinking it could’ve happened.
The jury had to determine whether to accept defendant’s testimony, in which he denied the assaults, or his statement to the police, in which he attributed the assaults that possibly occurred to his intoxication. In his statement, he repeatedly stated that he never would have engaged in such conduct if not intoxicated and that he had no recollection of the assaults. If the jury accepted these statements as credible, it could find that the assaults occurred only when defendant was intoxicated; that he consumed beer on a daily basis to at least the point of a “buzz,” if not intoxication, and that his inability to recall the events was the result of alcohol-induced blackouts. Further, in light of his repeated protestations that he considered such behavior “sick” and could not have engaged in it unless intoxicated, the jury could have found that his level of intoxication negated the element of knowing behavior required to sustain a guilty verdict on any of the *61offenses. As the trial court observed, “there is some evidence in this case in which a reasonable jury could find intoxication as a defense.”
Once the court reached that threshold, an instruction on voluntary intoxication was required to discharge the duty to provide “the law of the ease applicable to the facts that the jury may find.” Koskovich, supra, 168 N.J. at 507, 776 A.2d 144 (emphasis added). An instruction that fails to do so “engenders too great a risk that the jury’s ultimate determination of guilt or innocence will be based on speculation, misunderstanding, or confusion.” State v. Olivio, 123 N.J. 550, 567-68, 589 A.2d 597 (1991). If the court had deferred to the wishes of counsel, the jury would have been left without guidance as to how to weigh facts clearly before them, and its evaluation of that evidence could only have been based on speculation. Driving blind, the likelihood of a wrong turn in the jury’s deliberations would have been a genuine hazard.
Ill
The majority concludes that reversal is required because the evidence fails to demonstrate the “prostration of faculties” needed to support a successful intoxication defense. See Cameron, supra, 104 N.J. at 54, 514 A.2d 1302. However, assuming the majority’s assessment of the evidence is correct, that does not mean that the decision to give the charge was error, let alone reversible error. Because of the nature of the voluntary intoxication defense, an instruction remained relevant even if the evidence was insufficient to establish the defense.
N.J.S.A. 2C:2-8 provides that intoxication is a defense only to crimes that require purposeful or knowing mental states and is not a defense to crimes that require states of recklessness or negligence. Cameron, supra, 104 N.J. at 53, 514 A.2d 1302; State v. Stasio, 78 N.J. 467, 481-83, 396 A.2d 1129 (1979); see also Model Penal Code § 2.08. Therefore, like diminished capacity, N.J.S.A. 2C:4-2, State v. Reyes, 140 N.J. 344, 354, 658 A.2d 1218 (1995), and mistake of fact, N.J.S.A. 2C:2-4(a)(1), State v. Pena, 178 N.J. *62297, 839 A.2d 870 (2004), intoxication is a “failure of proof’ defense. Unlike affirmative defenses that excuse conduct which is otherwise unlawful, the exculpatory effect of these defenses is limited to the consequence that follows when the evidence negates an essential element of the offense charged. State v. Bowens, 108 N.J. 622, 632, 532 A.2d 215 (1987); State v. Sexton, 160 N.J. 93, 99-100, 733 A.2d 1125 (1999). Whatever the state of evidence of intoxication, diminished capacity, or mistake of fact, the State remains obligated to prove that the defendant acted with the requisite mental state. State v. Nataluk, 316 N.J.Super. 336, 343, 720 A.2d 401 (App.Div.1998). “If there is reasonable doubt as to whether defendant’s mental condition permitted him to form the requisite knowledge or purpose which constitutes an essential element of the crime, the defendant is entitled to an acquittal.” Ibid.
The trial court’s concern that the failure to give an instruction here might constitute reversible error was not unfounded. Our Supreme Court has recognized that even when evidence is insufficient to establish such a defense it may nevertheless be sufficient to create a reasonable doubt. Powell, supra, 84 N.J. at 314, 419 A.2d 406. In considering other “imperfect” failure of proof defenses, the Supreme Court has found reversible error when the trial court failed to instruct the jury on the defense. E.g., Pena, supra, 178 N.J. at 316, 839 A.2d 870; State v. Williams, 168 N.J. 323, 335, 774 A.2d 457 (2001). See also, State v. Sexton, supra, 160 N.J. at 106, 733 A.2d 1125; State v. Polk, 164 N.J.Super. 457, 462, 397 A.2d 330 (App.Div.1977), aff'd, 78 N.J. 539, 397 A.2d 327 (1979) (“[Vjoluntary intoxication is not an absolute defense but may be considered by the jury in determining whether the intoxication” negated the requisite mental state.).
Clearly, an instruction on voluntary intoxication is not required in every case in which there is some evidence of alcohol or drag use. However, we consider here the exercise of discretion by the trial court that heard the case and determined that such a charge was appropriate based upon its evaluation of the evidence. The *63fact that a reviewing court considers the defense to be imperfect should not be grounds for reversal under these circumstances.
IV
In finding reversible error here, the majority views the defense objection to the voluntary intoxication charge as pivotal. However, the objection posed by defense counsel was deficient because it rested upon an erroneous legal premise and did not identify any cognizable prejudice to defendant.
To properly preserve an issue for appeal, “the trial judge [must] be made aware of the reasons for objection to judicial action or conduct.” State v. Melton, 136 N.J.Super. 378, 381, 346 A.2d 424 (App.Div.1975). Every request must state the correct principle of applicable law in a manner that is tailored to the facts of the case and is not misleading. Green, supra, 86 N.J. at 290, 430 A.2d 914. An objection expressed in terms that make no legal sense is unacceptable and will subject the claim to review as plain error. State v. Nelson, 318 N.J.Super. 242, 250, 723 A.2d 627 (App.Div.), certif. denied, 158 N.J. 687, 731 A.2d 47 (1999); see also, State v. Gelb, 212 N.J.Super. 582, 589, 515 A.2d 1246 (App.Div.1986), certif. denied, 107 N.J. 633, 527 A.2d 456 (1987) (request to charge must state a correct principle of law in order for its denial to be error). The trial court may justifiably reject a request that is based upon an erroneous statement of law. Gelb, supra, 212 N.J.Super. at 589, 515 A.2d 1246.
Defense counsel explained his opposition to the charge as follows:
I think I can fairly say that I did tell my client, your Honor, that with an intoxication defense, two things happen.
Number One, because of what the Court read a few minutes ago, he does stand a chance of knocking the grade of the crime down from first degree down to second [] degree.
But, then that also puts in the jury’s minds—they may try to look at it as “Well, he was drunk”—well, they may try to split the baby, so to speak, in the way of acquitting him of the more serious charge but still finding him guilty of a less serious charge due to the intoxication.
*64His position is that he was not intoxicated. They led him to make statements that were not true regarding intoxications.
He wants the jury to decide on the merits whether or not these things happened or whether or not they were misled by the child’s statements and the mother’s statements.
[(Emphasis added.)]
This objection fails to present any obstacle to the trial court’s exercise of discretion. The nature of prejudice commonly found to preclude an instruction is that the instruction is “directly contrary to defendant’s position at trial, ... forcing] counsel to ... forsake[ ] or alter[ ] his chosen strategy,” or, in the case of a lesser-included offense, that the charge will “make defendant’s conviction for the greater crime more likely.” Vasquez, supra, 265 N.J.Super. at 549, 628 A.2d 346.4 Defense counsel failed to articulate either type of prejudice and rested his argument upon an erroneous statement of law.
Defense counsel never contended that an intoxication charge would make it more likely that defendant would be convicted of the greater offense. Instead, he merely argued that the jury “may try to split the baby.” In effect, he argued that the instruction increased the likelihood that the jury would convict defendant on the lesser offense rather than possibly acquitting him on all charges. This argument is wrong as a matter of law.
As noted, the effect of a successful intoxication defense is to negate the element of knowledge. Unlike murder cases in which voluntary intoxication provides a defense to a first-degree offense charged but not to lesser offenses, see e.g., State v. Warren, 104 N.J. 571, 579, 518 A.2d 218 (1986); State v. Klich, 321 N.J.Super. *65388, 397, 729 A.2d 432 (App.Div.1999), all the offenses presented to the jury, including the lesser-included offense charged,5 required the State to prove knowledge as an essential element of the offense. Therefore, if the jury concluded that defendant met the voluntary intoxication criteria, an acquittal was required on all charges. The instruction provided no legal basis for an acquittal on the more serious offenses and a conviction on the lesser offense.6
The objection also failed to articulate how the charge prejudiced defense strategy. Defendant may not rely upon mere inconsistency with the chosen defense. See Cameron, supra, 104 N.J. at 58, 514 A.2d 1302. The standard for such prejudice is met by “preempting defense counsel’s strategic and tactical decisions,” forcing counsel to “incorporate defenses that presuppose the existence of the very fact his main method of defense contests[,] destroying] the credibility and coherence of the defense entirely.” Vasquez, supra, 265 N.J.Super. at 549, 628 A.2d 346.
Yet, on appeal, defendant has only advanced the conclusory statement that “[c]harging intoxication over defendant’s objection interfered with his trial strategy and right to defend the State’s charges in the manner he and his counsel saw fit.” He has offered no explanation as to how that is the ease other than the fact that the court did not defer to his objection. That is not enough.
Pursuant to Rule 1:8-7(b), the trial court held a charge conference with counsel prior to summations and discussed with them at length its decision to give the jury a charge on voluntary intoxication. As a result, counsel had the opportunity to make any *66adjustments to their summations that they deemed appropriate. Garron, supra, 177 N.J. at 181, 827 A.2d 243 (citing Perry, supra, 124 N.J. at 160-161, 590 A.2d 624 and Choice, supra, 98 N.J. 295, 486 A.2d 833). However, a review of defense counsel’s summation reveals no evidence of any coerced adjustment or, indeed, any irreconcilable conflict between his defense strategy and the intoxication charge:
Let’s talk for a moment about the nature of what my client testified to happened before the audiotaping was done. When you listen to the tape of my client that was audiotaped, that segment that was audiotaped, you find out he makes some statements where he is hesitant, not coming— trying to figure out what is going on because they are asking him were there possibilities of things done.
He said “Possible? Yeah, it’s possible”.
Why was it possible? If you listen to him testify as to what happened before they started taping, the guy told him—Hunsinger told him “You were drunk, this is why you don’t remember”.
And my client says “Well, if I was drunk and [L.T.] is saying I did this, everything is coming down on me saying I did it, I must have done it”.
Trying to reconcile the two things.
When they press him—keep going through the transcript and they are pressing him and what he remembers and doesn’t remember.
He says “I don’t remember doing it.”
He never admits he did it in the sense that he remembers doing these things because he didn’t do these things.
In this, the only portion of the summation that addresses the intoxication evidence, defense counsel ably reconciled the disparity between defendant’s statement to the police and his testimony at trial. Significantly, this was an issue that he had to address even if no instruction on intoxication was given. Moreover, there was no factual incompatibility between this argument and the instruction on voluntary intoxication. Indeed, defendant has not identified any argument that could not be made because the instruction was given. Therefore, the record simply does not bear out the conclusion that the instruction “impermissibly” interfered with defendant’s chosen trial strategy.
In sum, neither the objection nor the summation reveal any cognizable prejudice to defendant as a result of the instruction on voluntary intoxication. As a result, the mere fact of objection did *67not present a legitimate basis for the trial court to surrender its judgment in deference to defense “strategy.” “[Ejnforcement of the criminal law is too important to be controlled completely by the contentions of the adversaries!!]” Choice, supra, 98 N.J. at 299, 486 A.2d 833. The trial court’s absolute duty to instruct the jury on the law governing the facts of the case, Concepcion, supra, 111 N.J. at 379, 545 A.2d 119, supersedes defense strategy where, as here, there is no cognizable prejudice.
[Tlhe integrity of the justice system and the fact-finding process is not subordinate to the singular interests of the parties. The public interest in a correct verdict based on the evidence must trump the partisan strategic maneuvering of both the State and defendant.
[Garron, supra, 177 N.J. at 180, 827 A.2d 243 (citation omitted).]
See also State v. Grunow, 102 N.J. 133, 148, 506 A.2d 708 (1986).
V
The only challenge to the jury charge is the claim that the trial court erred in giving an instruction on voluntary intoxication. When the error alleged concerns only a portion of a charge, the challenged portion is not to be “dealt with in isolation but the charge should be examined as a whole to determine its overall effect.” State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973); see also State v. Delibero, 149 N.J. 90, 106, 692 A.2d 981 (1997).
A party is entitled only to a charge that is accurate and that does not, on the whole, contain prejudicial error. As such, the test is to examine the charge in its entirety, to ascertain whether it is either ambiguous and misleading or fairly sets forth the controlling legal principles relevant to the facts of the case.
[State v. LaBrutto, 114 N.J. 187, 204, 553 A.2d 335 (1989) (citation omitted).]
“Reversal of a conviction will be warranted only if the instruction, taken as a whole, proves to be misleading or prejudicially ambiguous.” Gelb, supra, 212 N.J.Super. at 589, 515 A.2d 1246 (citing State v. Hipplewith, 33 N.J. 300, 317, 164 A.2d 481 (1960)). Even when there is an objection, error must be “clearly capable of producing an unjust result” to justify reversal. R. 2:10-2; State v. Macon, 57 N.J. 325, 336-39, 273 A.2d 1 (1971). The fact that the trial court did not incorporate the defense theory in the jury charge by omitting a charge on intoxication does not raise a *68reasonable doubt that the jury would have reached a different result. See State v. Brims, 168 N.J. 297, 307, 774 A.2d 441 (2001); see also LaBrutto, supra, 114 N.J. at 204, 553 A.2d 335.
In reversing defendant’s conviction based upon one isolated alleged error, the majority did not examine the charge in its entirety as required. As reflected by defendant’s failure to object to any other portion of the charge, the charge accurately identified the elements of each offense, correctly informed the jury of the State’s burden of proof and properly charged the jury on the only appropriate lesser-included offense.
Defendant was convicted of the offenses in the indictment. Therefore, he did not suffer the only prejudice ever identified by his counsel—conviction of a lesser offense. The evidence of defendant’s guilt included his own statement to the police and the testimony of the victim regarding the assaults. If accepted by the jury, this evidence was more than adequate to support the verdict. Neither the defense nor the majority has explained how the omission of an instruction on intoxication would have produced a different result.
In summary, the trial court’s decision to provide the jury with an instruction on involuntary intoxication was an appropriate exercise of discretion based upon the court’s evaluation of the evidence. The court was not obliged to abandon this judgment in the face of an objection that failed to articulate cognizable prejudice to defense strategy. The record fails to show that defendant was prejudiced by the charge. The verdict had adequate support in the evidence and the isolated error alleged within the context of an otherwise unchallenged charge lacked the capacity to lead to an unjust result.
For these reasons, I dissent from the majority’s conclusion that it was reversible error for the trial court to provide the juiy with instructions applicable to the evidence of intoxication.
I concur with the majority’s decision that defendant's motion to suppress his statement was properly denied.
Although Cameron did not involve a lesser included offense, it remains distinguishable because, as noted above, the “clearly indicated" standard was applied to determine whether the trial court committed plain error in failing to act sua sponte. 104 N.J. at 44, 514 A.2d 1302.
The fact that the evidence of intoxication was presented by the State and repudiated by defendant is of no moment. See Powell, supra, 84 N.J. at 320, 419 A.2d 406 (evidence in statement disavowed by defendant was sufficient to require manslaughter instruction).
The majority cites Perry, supra, and Vasquez, supra, as authority for the proposition that the trial court here was required to defer to the strategy of defense counsel. However, both cases are distinguishable. In both cases, defense counsel did not request a self-defense charge and the issue on appeal was whether it was plain error for the trial court to fail to charge self-defense sua sponte. No error was found in either case because, under the facts of the case, a sua sponte charge on the lesser included offense would make the conviction for the greater offense more likely. That level of incompatibility with the factual underpinnings of the defense strategy is absent here.
Defendant was charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7); and one count of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). Endangering the welfare of a child, N.J.S.A. 2C:24-4(a) was also charged as a lesser-included offense.
Because the premise for defense counsel's objection was therefore erroneous, this alleged error is properly subject to a plain error standard. Nelson, supra, 318 N.J.Super. at 250, 723 A.2d 627.