12-20-06 A-6162-01T4
In this appeal of defendant's murder conviction arising out
of the death of her six-month-old infant, we found that the jury
charge on the limited purposes for which evidence of prior abuse
of the infant could be considered pursuant to N.J.R.E. 404(b)
was neither confusing nor vague. In addition, we concluded that
the prosecutor's summation, though highly charged and delivered
without objection from the defense, was not so egregious that
defendant was deprived of a fair trial. We agree, however, that
defendant's conviction for third-degree aggravated assault
should have been charged as a lesser included offense of second degree aggravated assault.
Judge Weissbard filed a dissenting opinion in which he
disagreed with the majority's conclusion that the trial court
properly instructed the jury on the 404(b) evidence. He also
concluded that the prosecutor's misstatements during summation
further emphasized the need for carefully tailored, complete and
forceful limiting instructions. In his view, these errors
resulted in extreme prejudice to defendant in a case where the
evidence, if properly considered by the jury, could have
supported a manslaughter verdict rather than the murder
conviction.
