On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-02-0292.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 12, 2005
Before Judges Cuff, Lintner and Gilroy.
Following a jury trial, defendant Rodney Black was convicted of the lesser included offense of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a(1); and endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. The victim was defendant's ten-month old daughter. Defendant is serving a thirty-year term of imprisonment subject to a NERA*fn1 85% parole ineligibility term on the manslaughter conviction and a concurrent ten-year term of imprisonment on the endangering conviction. The appropriate fines, penalties and assessments were also imposed.
On appeal, defendant raises the following points:
RECONSTRUCTING OF THE JURY WAS PLAIN ERROR REQUIRING REVERSAL OF THE CONVICTION AND SENTENCE FOR CHILD ENDANGERMENT.
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON CHILD ENDANGERMENT CONSTITUTED PLAIN ERROR.
APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AND THE VERDICT RENDERED WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE PROSECUTOR'S IMPROPER COMMENTS, TOLERATED BY THE COURT, CONSTITUTED MISCONDUCT AND REQUIRES REVERSAL.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.
THE SENTENCE IMPOSED WAS UNCONSTITUTIONAL, ILLEGAL AND MANIFESTLY EXCESSIVE.
We reverse the endangering the welfare of a child conviction due to the irregularities accompanying the return of the verdict on this charge, and we reverse the aggravated manslaughter conviction and remand for a new trial due to a prejudicial statement in the prosecutor's summation coupled with an ...