¶1concurring.
¶2I join the Court’s opinion. I write separately only on the issue of whether defendant’s conviction of aggravated manslaughter can be sustained, defendant having argued that that conviction was premised on different facts from the offense of murder for which he was indicted. The majority upholds that conviction, reasoning that because the trial court properly charged the jury that defendant, by virtue of his indictment for murder, could alternatively be convicted of murder as an accomplice, N.J.S.A. 2C:2-6b(3), see State v. Boyer, 221 N.J.Super. 387, 402, 534 A.2d 744 (App.Div.1987), aggravated manslaughter therefore could be charged to the jury as a lesser-included offense, N.J.S.A. 2C:1-8d, of accomplice-liability murder. Ante at 257, 590 A.2d at 1120.
¶3I agree with the Court’s holding sustaining the aggravated-manslaughter conviction, but would arrive there by a slightly different route. In my view, the lesser-included offense provision of the Code of Criminal Justice, N.J.S.A. 2C:1-8d, permits a defendant to be convicted of “an offense included in an offense charged,” meaning that the statutory definition of an “included offense” refers back to the offense for which defendant was indicted, in this case murder. See State v. LeFurge, 101 N.J. 404, 419, 502 A.2d 35 (1986). Hence, as the majority opinion tacitly acknowledges, the aggravated-manslaughter offense in this case was not a lesser-included offense of murder, the indicted offense, because its factual predicate was entirely different. The evidence supporting the aggravated-manslaughter charge indicated that defendant hired someone to injure the decedent, and the murder indictment charged that defendant committed the homicide by his own conduct.
¶4Nevertheless, there was clearly a rational basis in the evidence for the aggravated-manslaughter charge, and defendant, understandably, did not object to the trial court’s proposed charge on aggravated manslaughter. As we noted in State v. Sloane, 111 N.J. 293, 300, 544 A.2d 826 (1988), the statutory *265definition of lesser-included offenses is not “all-encompassing,” nor are the statutory categories “water-tight compartments.” Sloanesuggests that in certain circumstances, subject to the requirements of fair notice, an offense not meeting the Code’s definition of lesser-included offense should be charged to the jury if it is supported by the evidence. That principle “comports with our general view that subject to fair notice the jury should resolve the degree of an actor’s guilt on the basis of the evidence presented to the jury.” Ibid.
¶5As the majority observes, defendant was not caught “off guard” by the jury charge on aggravated manslaughter, having undoubtedly been alerted through discovery and other evidence to the possibility that that offense could be developed by the proofs as an alternative to murder. Ante at 257-259, 590 A.2d at 1120-1121. As we observed in LeFurge, the principle that “an indictment must fairly apprise a defendant of the charges against him … [is] sufficiently flexible to accommodate the commonlaw doctrine that a defendant may be found guilty of a lesser offense included in the offense charged in the indictment.” State v. LeFurge, supra,101 N.J. at 419, 502 A.2d 35. That principle may also accommodate a charge on a related offense when, as in this case, defendant is not surprised and the charge on aggravated manslaughter obviously serves his interests. Under the circumstances, not only was that charge appropriate, its omission may well have constituted reversible error. That the theory of aggravated manslaughter on which defendant was convicted was not a statutorily-defined included offense of the indicted murder offense does not under these circumstances affect the validity of defendant’s conviction.