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State v. K.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 5, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
K.B., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
F.B., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1738-I.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2009

Decided Argued May 5, 2009

Before Judges Collester, Graves and Grall.

These back-to-back appeals arise from the convictions of F.B. and K.B., husband and wife, for injuries suffered by their adopted son, J.B. Defendants were indicted on December 16, 2004, and charged with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count two); and second-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count three). On April 4, 2005, following voir dire of each defendant, Judge Phillip L. Paley granted defendants' motion for the same attorney to represent them at trial. Prior to trial, the court granted the State's motion to dismiss the conspiracy count against both defendants as well as count one charging second-degree aggravated assault against F.B.

On March 27, 2006, the day before trial was to begin, defendants moved to waive a jury and have the matter proceed as a bench trial. Judge Dennis V. Nieves, the trial judge, denied the motion. The jury trial began the next day and ended on May 4, 2006. K.B. was found guilty of second-degree aggravated assault and both K.B. and F.B. were found guilty of endangering the welfare of J.B. by failing to provide adequate medical care. K.B. was sentenced to a custodial term of five years on the aggravated assault count with eighty-five percent parole ineligibility under the No Early Release Act (NERA) and a concurrent five-year term for endangering J.B.'s welfare. In sentencing F.B. on the endangering conviction, Judge Nieves downgraded the second-degree conviction and sentenced F.B. as a third-degree offender to a term of three years. Both defendants appeal their convictions, and K.B. also appeals her sentence.

Defendants were married in 1996. A year later they moved to Milltown with the intent of starting a family, but their hopes were frustrated because K.B. had difficulty conceiving. She was referred to a fertility specialist and became pregnant by in vitro fertilization. Her pregnancy was difficult and dangerous. After twenty-nine weeks, she gave an induced premature birth to a son, S.B., on March 17, 2001. S.B. weighed only two pounds at birth and remained in the hospital for four months until he went home with his parents in September 2001.

Prior to her pregnancy, K.B. was employed full-time as a registered nurse at Robert Wood Johnson University Hospital. After S.B.'s birth, she returned to work as a per diem nurse. K.B. and F.B. wanted S.B. to have a sibling, but K.B.'s doctor advised her against another pregnancy. They decided to adopt a child. K.B. learned from hospital co-workers that it was possible to adopt a baby from Korea through an international adoption agency. After considerable time and expense, their application for adoption was approved. On May 6, 2004, they took custody of a four-month-old boy they named J.B.

F.B. worked a daytime job as a customer representative with Johnson & Johnson, and K.B.'s hours at the hospital were normally 11 p.m. to 7 a.m. Accordingly, they arranged for daycare for S.B. and J.B. at the home of L.H., who ran a daycare business out of her home in Fords. Typically, they used L.H.'s services one to three days a week depending upon K.B.'s work schedule. When K.B. worked the nightshift, F.B. would take the children to L.H.'s home. When K.B. returned from the hospital, she would sleep for a time and then pick up the children and return home and feed them dinner.

K.B. testified that S.B., then three, was jealous of his new baby brother. He began acting aggressively toward J.B., taking his toys, attempting to go into his crib, and punching and kicking him on occasion. K.B. discussed the matter with the children's pediatrician, and she was told to closely supervise the children and not leave them alone. K.B. passed on this information to L.H.

On September 13, 2004, K.B. took J.B. to the pediatrician for a regular appointment. She reported no health-related complaints regarding J.B., and the pediatrician saw no signs of injury or abnormality. The following night K.B. worked the nightshift at the hospital. That night, September 14, was especially stressful for K.B. because a patient "coded" and nearly died until K.B. and others were able to resuscitate him.

K.B. then returned home at 9 a.m. and slept for about six hours.

F.B. had dropped off the children at L.H.'s house in the morning of September 15, 2004. L.H. had last watched the two children on September 10. On September 15 she watched two other children and one of her grandchildren. She said that J.B. was fine and not irritable. She did not observe any other child including S.B. injure J.B. that day. She also denied injuring him herself.

K.B. picked up S.B. and J.B. at about 5:30 p.m. She said that J.B. "looked fine." She returned home about 6 p.m., fed J.B., changed his clothes and put him to bed in the crib in the master bedroom where he fell asleep. At about this time F.B. returned home from work. K.B. then went out to buy a pizza and rent a movie. At about 10:30 p.m. after watching the movie, K.B. and S.B. went to sleep in the master bedroom. As was his habit, F.B. slept downstairs on a couch in the living room because of his snoring.

K.B. testified that although J.B. was a "good sleeper" and would normally sleep through the night, he woke up about 12:15 a.m. and was crying hard. J.B.'s crying woke up S.B. who also began to cry. F.B. came into the bedroom and told K.B. to go back to sleep with S.B. and he would take care of J.B. F.B. said he took J.B. downstairs and sat with him on the couch. He tried to give J.B. a bottle, but J.B. took only about two sips. When J.B. continued to be fussy, F.B. gave him a dose of Tylenol with codeine, which had been previously prescribed for J.B. following his circumcision. F.B. then turned off the lights and fell asleep on the couch with J.B. After about an hour and a half he was awakened by J.B. pulling on him and he returned J.B. to his crib. He estimated the time at about 3 a.m.

Between 5 and 5:30 a.m., K.B. was awakened by J.B.'s crying in the crib. She said that he felt a little warm and sweaty, so she took his temperature, which was normal. She noticed what she believed to be a bump or nodule in his ribcage. She gave J.B. back to F.B. and went back to sleep.

F.B. said that he wrapped a blanket around J.B. and put him on a sofa in the basement while he slept on the sofa upstairs. When he heard J.B. at about 7:30 a.m., he went downstairs to check on him. He noticed that J.B.'s eyes were puffy and that something was "not right" with him. Meanwhile, K.B. was changing the sheets in the master bedroom because S.B. had wet the bed. F.B. called to her and said there was something wrong with J.B. K.B. said as soon as K.B. looked at J.B., she knew it was a serious situation. J.B. was unresponsive, his left eye was swollen shut, and his limbs were limp. K.B. took his temperature, which was 101˚. She feared that the baby had meningitis or was having an allergic reaction to a recent vaccination. She told F.B. to call the pediatrician's office. After a time when the pediatrician did not call back, K.B. told her husband that they should go to the hospital. They took S.B. to his paternal grandparents' house about two blocks away and drove to Robert Wood Johnson University Hospital with J.B.

Dr. Amanda Pratt was the on-duty emergency room pediatrician when J.B. was brought into the hospital between 8:45 a.m. and 9:00 a.m. on the morning of September 16. Pratt testified defendants told her the infant had been unresponsive since early that morning and had been irritable during the night. F.B. told Dr. Pratt that he had given J.B. a dose of Tylenol with codeine during the night. K.B. was unaware that F.B. had given the baby Tylenol until that moment. Dr. Pratt was concerned because J.B.'s left pupil was large and not reacting to light, and his extremities were stiff. J.B.'s temperature was 102˚.

Dr. Pratt then ordered a CAT scan because she suspected that J.B. had a sustained a brain injury. The CAT scan performed at 9:10 a.m. disclosed a skull fracture and a left frontal subdural hematoma that caused a seven millimeter midline shift of the brain. Dr. Pratt felt the CAT scan findings were indicative of non-accidental trauma, and she admitted J.B. to the pediatric intensive care unit.

An MRI of the baby's head was performed shortly after 10:30 a.m., and it revealed that J.B. had suffered a stroke. J.B. was examined at about 11:30 a.m. by Dr. Steven Choi, a pediatric critical physician. Dr. Choi observed that J.B. had a large swollen area on the back of his skull and significant swelling over his left eye. His breathing was labored, and his heart rate was dropping because of increased swelling in the brain. Dr. Choi placed J.B. on a ventilator, and Dr. Michael Nosko, a neurosurgeon, was brought in for a consultation.

When J.B.'s heart rate began to drop precipitously, Dr. Nosko performed an emergency craniotomy. He took out part of J.B.'s skull bone in order to remove a blood clot from the subdural space. He observed that J.B. had sustained an infarction, or stroke, in the posterial cerebral artery. Dr. Nosko opined that J.B.'s injuries were the result of an impact or blow to the back of the head which caused the child's brain to twist inside the skull, resulting in bilateral contrecoup contusions. He said a "reasonably strong force" caused the injuries and that symptoms of the injuries would appear almost immediately. It was his opinion that the injuries occurred in a period from less than one hour up to twelve hours before the time of the initial CAT scan. He testified that the injuries could not have occurred prior to 5 p.m. on the preceding day because the first CAT scan did not show evidence of a stroke.

After the surgery, J.B. was returned to the pediatric intensive care unit. Dr. Choi ordered a skeletal x-ray survey which disclosed a healing rib fracture.

In Dr. Choi's opinion J.B. was the victim of child abuse. He said the skull fracture and subdural hematoma were not caused by an accident but by the child's head being thrown against a hard object or having a hard object strike his head. In response to a question from the prosecutor, Dr. Choi said that based on his experience a three-year-old child would not have the strength to cause the injuries sustained by J.B.

The Division of Youth and Family Services (DYFS), and the Middlesex County Prosecutor's Office were notified of suspected child abuse. Investigator Randi Colatrella responded to the hospital and met with Dr. Choi. She said that he told her that J.B.'s injuries occurred one to three hours prior to arriving at the hospital and that he suspected child abuse. Investigator Colatrella then met with the parents, who agreed to accompany her and Detective Raj Chopra to the prosecutor's office a few blocks away. K.B. and F.B. were separately interviewed. Their statements were recorded on video and audio and were played to the jury as part of the prosecutor's case.

In her statement K.B. related the events of September 14 and 15, beginning with her "horrible night" at the hospital because someone "coded" on her. At one point she described herself as "a nurse with sleep deprivation." She said that after arriving at the hospital that morning and being told that J.B. had suffered a fractured skull, she wondered, "How the hell did that happen?" When asked what she thought was the cause of the injury, K.B. replied, "My only thought would be S.B." She said that she and her husband had problems with S.B. being "really rough" with J.B., hitting him with toys, kicking him, pushing him to the ground and trying to suffocate him. However, she said at no point during the night of September 15 and the morning of September 16 was S.B. alone with J.B. During the interview K.B. disclosed that she suffered from anxiety and depression since childhood and was seeing a psychiatrist for depression and panic attacks. She was taking Paxil for these problems.

In his statement, F.B. said there were sibling rivalry issues between J.B. and S.B. and that S.B. was too rough with J.B. but he did not think S.B. caused the injury. When asked whether he had any prior interaction with DYFS, F.B. told the investigators of an incident in April 2004 when he left S.B. in the car while purchasing a headlight at the store. Someone contacted the police when they saw S.B. alone and crying in the car.

After the interviews, the detectives obtained a search warrant for defendants' home in Milltown. When they entered the master bedroom, they saw the baby crib in the far left corner.

They also noticed a five-inch wide indentation on the left side wall with a crack in the paint and a hair sticking straight out of the wall. It was later stipulated that the hair came from J.B. Investigators Colatrella and Chopra measured the distance between the dent in the wall and the floor and determined it was between sixty-four and sixty-eight inches. K.B. is sixty-four inches tall while F.B. is seventy-one inches tall.

On September 22, 2005, Investigators Colatrella and Chopra and three uniformed police officers went to defendants' home to arrest them. When K.B. was told she was under arrest, she asked if her husband could attend to S.B. The police responded that her husband was also being arrested. K.B. then said, "You're arresting [F.B.] also? Why are you arresting [F.B.]?"

J.B. remained in the pediatric intensive care unit for a week. He was then transferred to another wing of the hospital where he also remained until he was discharged a week later.

Dr. Petr Ruzicka, a pediatric neurosurgeon at Robert Wood Johnson University Hospital, assumed care of J.B. after his surgery. He said J.B.'s injuries consisted of a skull fracture, subdural hematoma, a stroke, and a torn transverse sinus. Ruzicka concluded that the injuries were caused by a "significant force" to the head and that the injuries occurred "within hours of arrival at the hospital." He said he would have expected that J.B. would have started exhibiting symptoms soon after the physical trauma, beginning with irritability and progressing lethargy, stupor, coma and unstable vital signs. Addressing the timeline, Dr. Ruzicka opined that this injury would have happened after J.B. was picked up from the babysitter, after he ate dinner and after he went to bed. In his opinion the injury would have occurred within two to five hours before presentation in the emergency room and most likely within two to three hours.

The State also offered Dr. Sudipta Roychowdhury, a neuroradiologist, who examined the CAT scan and MRI. He concluded that the child suffered a right occipital skull fracture and adjacent large scalp hematoma which in turn caused the infant's brain to shift to the front of the skull. In his opinion the injuries and the resultant stroke were caused by a powerful blow to the back right portion of the skull. He said the injuries and the bleeding were acute, meaning that they occurred anywhere from a few hours to three days prior to admittance. However, based on the failure of the CAT scan to show the stroke, he said the latest the injuries could have occurred would have been about 3 a.m. on September 16 and the earliest approximately 9 p.m. on September 15, or between six and twelve hours prior to the CAT scan.

Dr. Jonathan Arden, a forensic pathologist, testified as an expert witness on behalf of the defendants. He reviewed the police reports, the medical reports, and the MRI and CAT scans. He said that on the MRI the subdural hemorrhage was brighter than the brain substance, meaning that J.B. suffered a "slow bleed." He concluded that J.B.'s injury was subacute and that it had occurred between one and four days, most likely two to three days, prior to the September 16. Dr. Arden also said that because the bleeding was slow, J.B. initially did not exhibit any symptoms because they would substantially progress only after enough volume of blood put direct pressure on the brain. Therefore, he saw no contradiction between J.B.'s "rapid decline" on September 16 and the injury occurring more than twenty-four hours earlier. He opined that given the medical evidence and the facts of the case, it was impossible to determine whether the injury was accidental or non-accidental. He testified that he viewed defendants' master bedroom and did not see a dent in the wall but only a small area where a chip of paint had come off, which was consistent with a "nail pop," or the house settlement. He concluded that J.B.'s head did not strike the bedroom wall.

Defendants also offered Dr. Noble Thompson, a neuroradiologist, who examined the CAT scans and MRI tests as well as the reports prepared by the various physicians. According to Dr. Thompson, J.B. suffered a massive blow to the right back of his head which resulted in a fracture and bleeding on the left side and a shifting of the brain, which in turn caused the stroke. He stated that while he originally saw no signs of a stroke on the copies of the CAT scan, when he reviewed the original film, he could see subtle evidence of a stroke. He concluded that the subdural hemorrhage was not hyper acute or acute because the color of the injury on the MRI was white rather than grey. Therefore, he concluded that the injury occurred more than forty-eight hours prior to the MRI. He also added that he had seen cases where children act normally even though they have had a subdural hematoma.

K.B. testified on her own behalf and presented a character witness. F.B. did not testify.

Following her conviction and sentence, K.B. appeals and sets forth the following arguments for our consideration:

POINT I - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO WAIVE A JURY TRIAL.

POINT II - THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY PRECLUDING DEFENSE COUNSEL FROM ARGUING ALTERNATIVE THEORIES OF ORIGIN OF INJURY IN SUMMATION.

POINT III - THE PROSECUTOR COMMITTED PLAIN [ERROR] IN SUMMATION BY ARGUING THAT THE DEFENDANT'S ORAL STATEMENTS SHOWED CONSCIOUSNESS OF GUILT. (Not Raised Below.)

POINT IV - THE "REBUTTAL TESTIMONY" OF INVESTIGATOR CHOPRA PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT V - IMPROPRIETIES IN THE PROSECUTOR'S SUMMATION PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT VI - THE COURT'S FAILURE TO GIVE AN APPROPRIATE JURY INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE RESULTED IN PLAIN ERROR. (Not Raised Below.)

POINT VII - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

POINT VIII - THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE SENTENCES OF 5 YEARS ON THE DEFENDANT'S CONVICTIONS FOR SECOND DEGREE AGGRAVATED ASSAULT ON COUNT ONE AND SECOND DEGREE ENDANGERING THE WELFARE OF A CHILD ON COUNT TWO BECAUSE THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO A DOWNGRADED TERM FOR A CRIME OF THE THIRD DEGREE.

I.

Both K.B. and F.B. argue that the trial judge abused his discretion in denying their motions to waive a jury trial because of the inflammatory nature of the case, the scientific complexity of the evidence, the length of the trial, and the fact that the trial involved joint defendants. The State responds that there was no abuse of discretion by the court because the evidence was not unduly complicated and that defendants' waiver of a jury trial was a tactic to gain an advantage at a bench trial since the trial judge was aware of a decision in the Family Part holding that defendants' parental rights were not terminated following a hearing on a Title 9 abuse and neglect complaint filed by the State.

The trial judge found that the defendants voluntarily, knowingly, and competently waived their right to a jury, but he denied the motion for a bench trial. He noted the severity of the second-degree charges and that a guilty verdict against K.B. on the aggravated assault count would require that eighty-five percent of the sentence be served under NERA. While he recognized the emotional atmosphere inherent in the case, he believed the voir dire process was sufficient to ensure a fair jury. He also found that the jury could properly evaluate medical testimony when aided by the instructions of the court. Moreover, he was concerned that his knowledge of the decision of the Family Court judge could affect his impartiality in a bench trial. He stated:

[T]he fact that this matter was tried in a civil proceeding . . . before another judge and that judge made a certain ruling on this case gives one of the parties an advantage, and that's not right. And that weighed heavily on my mind . . . .

But [the judge] did hear this matter previously, and, of course, I have the utmost respect for her. I also know that I can agree to disagree . . . . But the fact that she did hear this matter and the fact that I would have to render a verdict in this case and somewhere there's a potential that her prior decision might affect me gives the defense an advantage over the State, and I don't think that's right. It should be a clean slate.

Under New Jersey Court Rule 1:8-1(a), criminal actions are required to be tried to a jury "unless a defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial." While there is a constitutional right to a jury trial, there is no correlative right to a trial without a jury. In ruling on a defendant's application for a bench trial, the judge is to exercise discretion under the totality of circumstances presented. State v. Dunne, 124 N.J. 303, 316 (1991); State v. Davidson, 225 N.J. Super. 1 (App. Div.), certif. denied, 111 N.J. 594 (1988). See also Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed. 2d 630 (1965). Our Supreme Court in Dunne outlined the ground rules for review of a request to waive a jury trial, stating that a court should (1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel; (2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and (3) determine, with an accompanying statement of reasons, whether, considering all relevant factors . . . it should grant or deny the defendant's request in the circumstances of the case. [Dunne, supra, 124 N.J. at 317.]

The "relevant factors" include the following:

At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere . . . , the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence. [Ibid.]

Finally, the court concluded:

We would never deprive the defendant of a fair trial in order to maintain public confidence, and on those occasions when fairness requires a waiver, obviously it must be granted. Having said that, we must never forget, as we have stated so often, the importance of maintaining the public's confidence in our criminal-justice system. Trial by jury, for reasons rooted in our history and tradition is one of the foundations of that confidence. It is a foundation not simply because of trust in the common man, trust in the verdict of one's peers, but because it has proven itself the best vehicle for obtaining justice. [Id. at 19.]

See also State v. Radziwil, 235 N.J. Super. 557, 571 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990).

In arriving at his decision to deny defendants' motion, the trial judge considered all of the relevant factors delineated in Dunne as well as his reluctance to grant a bench trial because his knowledge of the Family Court proceeding. We find that the trial judge did not abuse his discretion in denying the motion to accept the jury waiver and order a bench trial. Furthermore, there is no merit to defendants' argument that the trial judge should have recused himself rather than base his denial of the bench trial motion in part because of his knowledge of the parallel proceeding in the Family Court. No such request was made, and, in any event, recusal is a matter within the court's discretion. Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001).

II.

We next consider K.B.'s argument that the trial judge erred in denying her judgment of acquittal at the close of the State's case as well as her motion for a new trial based upon insufficient evidence of her guilt and inconsistent verdicts. On a motion for acquittal at the close of the State's case, the trial judge must deny the motion if viewing the State's evidence, whether direct or circumstantial, in its entirety, and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). Here there was medical evidence that J.B.'s injuries were suffered within six hours of his being brought to the hospital, which encompassed a period of time when K.B. was alone with the infant. Moreover, the State offered proof of the dent in the wall of the master bedroom with J.B.'s hair sticking out of the crack at a point consistent with K.B.'s height. Therefore, there was sufficient circumstantial evidence to uphold the guilty verdict on aggravated assault. With respect to endangering the welfare of a child, the proofs indicated that there was a delay of at least one hour in K.B. bringing J.B. to the hospital. This evidence was sufficient to justify the trial judge's denial of the defendants' motion for judgment of acquittal.

A trial court's decision on a motion for a new trial will be upheld unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. The standard for our review is abuse of discretion. State v. Conway, 193 N.J. Super. 133, 172 (App. Div.), certif. denied, 97 N.J. 650 (1984). K.B. argues that the verdicts on the charges against her were inconsistent. She was convicted of aggravated assault defined as "causing serious bodily injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1(b)(1). The endangering the welfare of a child charge was presented to the jury on two theories of culpability. The first was whether K.B. knowingly inflicted or allowed to be inflicted physical injury creating a substantial risk of death, and the second was whether K.B. caused harm to J.B. resulting in him becoming an abused and neglected child by knowingly failing to exercise a minimum degree of care in supplying him with adequate medical care. The jury found K.B. guilty of aggravated assault but not guilty of the first endangering theory of culpability that she knowingly injured J.B. and created a substantial risk of death. K.B. argues that this inconsistency constitutes a manifest denial of justice.

Inconsistent verdicts are normally permitted so long as the evidence is sufficient to establish guilt beyond a reasonable doubt. State v. Banko, 182 N.J. 44, 54-55 (2004). Each count of an indictment is regarded as if it were a separate indictment. Ibid. (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-59 (1932)). It is not for an appellate court to speculate as to whether apparently inconsistent verdicts resulted from jury lenity, compromise or mistake. Banko, supra, 182 N.J. at 53. There was sufficient evidence presented by the State for a jury to find defendant guilty beyond a reasonable doubt on the count for aggravated assault. Whatever the reason the jury determined K.B. not guilty on the first theory of endangering it is not relevant on appellate review. Therefore, we reject K.B.'s argument.

III.

There is no merit to K.B.'s argument that the rebuttal testimony of Investigator Chopra was improper. Dr. Arden testified on behalf of defendants that he observed no dent in the wall of the master bedroom but only a small area where a chip of paint had come off consistent with a "nail pop" or the result of the house settling. He concluded from his inspection that J.B.'s head did not strike the bedroom wall.

At defendants' request, the jury viewed the bedroom. Chopra testified as a rebuttal witness that he viewed the master bedroom on the same day that the jury did. He stated that the condition of the wall was different from the time he viewed it in September 2004 because there was no crack in the wall from which J.B.'s hair had been removed. We find nothing improper in the testimony. Rebuttal evidence is permissible when necessary because of new subjects introduced under direct or cross-examination of defense witnesses. State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). Chopra's testimony was obviously in response to Dr. Arden's testimony as well as the jury's view of the wall at the time of trial. Chopra's testimony was therefore proper rebuttal.

IV.

Both K.B. and F.B. argue that the trial court erred in preventing their attorney from arguing that someone else caused the injuries to J.B. They assert the ruling precluded them from establishing reasonable doubt as to their guilt.

A defendant is entitled to prove his innocence by showing that someone else committed the crime. See, e.g., State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989). Accordingly, a defendant may introduce probative evidence of a third-party's guilt. Id. at 289. In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed. 2d 297 (1973), the Supreme Court stated that an accused has a constitutional right under the due process clause of the Fourteenth Amendment to offer evidence of third-party guilt. The standard adopted by our Supreme Court governing the admissibility of evidence of third-party guilt was set forth in State v. Sturdivant, 31 N.J. 165 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960) as follows:

A defendant of course may seek to prove that another agency produced the death with which he is charged. It would seem in principle to be sufficient if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. . . . We think it not enough to prove some hostile event and leave its connection with the case to mere conjecture. Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case.

The question of relevancy ultimately rests in a sound exercise of discretion. [State v. Sturdivant, supra, 31 N.J. at 179.]

In Sturdivant the defendant was convicted of sodomy-murder of his four and one-half-year-old step-daughter. He sought to have his sister testify that seven days before the date of death, she saw her daughter, age three and one-half, insert a can opener into the vagina and rectum of the victim. The Supreme Court held that the trial judge properly exercised discretion in precluding that testimony in the absence of proof that the fatal injury was sustained a week before death or was of a kind that a can opener could cause. Id. at 179-80. See also Koedatich, supra, 112 N.J. at 302 (evidence of third-party guilt properly excluded where no evidence linked the third party to the victim); State v. Jimenez, 175 N.J. 475, 486 (2003) (threat to person other than victim held not proper evidence of third-party guilt); State v. Fortin, 178 N.J. 540, 590-93 (2004) (trial judge properly precluded evidence of drug dealing by the victim and others on a claim that "some unidentified denizen from the drug-infested area" murdered the victim).

To meet the standard of admissibility of evidence of third-party guilt, the proffered proof must have "a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." Sturdivant, supra, 31 N.J. at 179. The determination as to whether the proffered evidence of third-party guilt meets this requirement necessitates a fact-sensitive inquiry. State v. Cotto, 182 N.J. 316, 333 (2005). Accordingly, trial judges have broad discretion to admit or preclude such evidence of third-party guilt. Ibid. See also Fortin, supra, 178 N.J. at 591.

In this case defense counsel stated his intention to argue third-party guilt in summation based upon the testimony and statement of K.B. that S.B. was jealous and physically aggressive towards J.B. and, alternatively, that L.H. or other persons present at her home could have caused J.B.'s injuries. The trial judge granted the prosecutor's motion to exclude argument of third-party guilt as mere speculation. We hold that the trial judge did not abuse discretion in precluding defense counsel from arguing that S.B. or others were responsible for the damage to J.B.

There is absolutely no proof of any incident between J.B. and L.H. or others present at her home on September 10 or September 15 that would give rise to any reasonable inference or "rational tendency" to engender reasonable doubt. The proposed argument was based on pure conjecture without any evidential basis. With respect to S.B., there was testimony that the three-year-old toddler was physically aggressive toward J.B. on occasion and that the pediatrician warned K.B. not to leave them alone together. However, there was no proof of any incident between S.B. and J.B. occurring within the twelve-hour timeline projected by the State or the defense timeline of up to several days before the appearance of injury. Moreover, the uncontradicted testimony of Dr. Choi, one of J.B.'s attending physicians, was that a three-year-old would not have the strength and ability to cause a fractured skull and the other injuries sustained by J.B. Therefore, we find no abuse of discretion in precluding defense counsel from presenting argument as to the third-party guilt of J.B.

IV.

K.B. next argues that comments in the prosecutor's summation constituted prosecutorial misconduct depriving her of a fair trial. Specifically, she contends that the prosecutor improperly suggested a consciousness of guilt on her part from her comment upon her arrest, "Why are you arresting [F.B.]?" and her lack of a clear memory of the early morning hours of September 16, 2004. Next she claims that the prosecutor improperly characterized her testimony as "tailored," the prosecutor's suggestion to the jury that they had a societal duty to convict, and the comment that K.B. suffered from a "dissociative" psychological condition.

Prosecutors are expected to make a vigorous and forceful closing argument to the jury and are afforded considerable leeway as long as their comments are reasonably related to the scope of the evidence. State v. Frost, 158 N.J. 76, 82 (1999). In reviewing a prosecutor's summation, we must consider it as a whole and not simply focus on isolated remarks. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008). Generally, if no objection is made to the comments of the prosecutor, they will not be deemed prejudicial. Frost, supra, 158 N.J. at 83. The issue is whether the statements in the prosecutor's summation constituted prosecutorial misconduct that was so egregious it deprived the defendant of a fair trial. Ibid. See also State v. Mahoney, 376 N.J. Super. 63, 85 (App. Div. 2005), aff'd in part, rev'd in part, 188 N.J. 359 (2006).

K.B. contends that the argument of the prosecutor in summation that her inability to recall details of the night of September 16 in her statement as well as her comment when she was arrested were proof of her consciousness of guilt. The prosecutor stated:

Why is [K.B.] guilty members of the jury?

Why? What points to her guilt? The critical time period is a blur. The critical time period is a blur, so fogged. Ask yourself, members of the jury, that is a woman who's a nurse. She's paid to think clearly in emergent situations, in critical situations. And now when it comes to dealing with her son, everything during the 4:30 to 5:30 timeframe is a blur. It's a blur. It's a fog. I don't remember. I'm not sure. It shows a consciousness of guilt. She doesn't want to remember that timeframe, members of the jury, . . . ask yourself why isn't she remembering that timeframe. It shows a consciousness of guilt. She knows, members of the jury. . . . .

Statement on arrest. You heard Investigator Colatrella. What did [K.B.] say? . . . [F.B.] is under arrest too? You're arresting [F.B.] too? Why are you arresting [F.B.]? As though, members of the jury, consciousness of guilt. Why are you arresting [F.B.]? You've got me. I did it.

No objection was made to the prosecutor's summation so that we review the matter under the plain error standard.

Conduct or statements of defendant subsequent to the commission of the crime are relevant when indicating consciousness of guilt. See State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991). The rule applies only to conduct intrinsically indicative of a consciousness of guilt, such as unexplained flight or unusual exhibitions of remorse which may be probative of a guilty conscience. Ibid. See also State v. Mills, 51 N.J. 277, 286, cert. denied, 393 U.S. 832, 8 S.Ct. 105, 21 L.Ed. 2d 104 (1968).

Prosecutors are permitted to draw reasonable inferences from the proofs presented in their summations. State v. Nelson, 173 N.J. 417, 472 (2002). Although it may be argued that the more plausible interpretation of the remark was simply K.B. wondering why F.B. was arrested, the reasonableness of the inference made of the comment by the prosecutor together with the lack of objection did not have the clear capacity to produce an unjust result.

K.B. also asserts that the trial court should have issued a sua sponte instruction telling the jury that statements of an accused should be considered and weighed with caution pursuant to State v. Jordan, 147 N.J. 409, 427-28 (1997) and State v. Kociolek, 23 N.J. 400, 421-22 (1957). But failure to give such an instruction is not reversible error per se. Jordan, supra, 147 N.J. at 428. Furthermore, as we have noted, defendant does not argue that the comment was inadmissible but rather that the interpretation of the prosecutor was unreasonable.

K.B. next contends that the comments in the prosecutor's summation improperly suggested that she tailored her testimony. The prosecutor's comments were as follows:

Now, members of the jury, she got up on the stand and she testified and what happened? She had an explanation for everything and part of what she said was inconsistent with her statement. . . . On her statement the critical timeframe is a blur. . . . .

And now miraculously she remembers the entire night but when it was closer in timeframe she is not remembering the entire night. . . . .

And now, members of the jury, lets look at what she says in her testimony. It basically matches [F.B.]'s [statement].

And its clear, members of the jury, during both of their statements they each stated we've been discussing this. We've been discussing this. Two years now has elapsed. She's reviewed the discovery. She's reviewed her husband's statement. She knows what the difference is and why its important not to be inconsistent, and now she's offering you an explanation.

And why does it matter? Because she knows its important to be consistent. She knows she was trying to hide something on September 16, and she's still trying to hide it today.

In State v. Daniels, 182 N.J. 80, 85 (2004), the Court held that prosecutorial comments suggesting that a defendant tailored his or her testimony undermines the right of a defendant to a fair trial. Id. at 98. The Court distinguished two categories of tailoring: general and specific. Ibid. General accusations occur when the prosecutor draws the jury's attention to the defendant's presence during trial and his or her concomitant opportunity to tailor his or her testimony. Specific accusations of tailoring occur when there is evidence in the record which the prosecutor can identify that supports an inference of tailoring. Ibid. The Court held that general accusations of tailoring are prohibited, but specific accusations may be permissible. Id. at 98-99.

The prosecutor's comment in Daniels was that the defendant was able to sit and listen to the entire case including the State witnesses and then was able to "craft his version to accommodate those facts." The Supreme Court reversed the conviction despite a lack of objection because the comments referred to the fact that the defendant was in the courtroom to hear the testimony of other witnesses prior to testifying.

In State v. Feal, 194 N.J. 293 (2008), the defendant's testimony regarding a shooting differed in material respects from an earlier statement he had given to the police. In his statement the defendant said that the gun went off accidentally while he was pointing it at the victim while at trial he said the victim was holding the gun and that it went off accidentally when defendant was attempting to disarm her. The prosecutor said the defendant "had seven months to come up with the story" and gave a different version "after receiving all of the discovery" and "after hearing all the witnesses testify." Id. at 303. The Court held that while the prosecutor's remarks violated Daniels because of the reference to hearing other witnesses testify, they did not rise to the level of plain error. Id. at 312-13. The Court noted that in both versions the defendant acknowledged shooting the victim and that any tailoring "was obviously not cut to fit that of the other witnesses he saw." Id. at 313.

As in Feal, the prosecutor sub judice did not challenge the testimony of the defendant because of her presence in the courtroom or suggest that she had conformed her testimony to other witnesses. Instead, the prosecutor made specific reference to K.B.'s review of the discovery and asserted that she changed the version she gave in her statement. Accordingly, we find that the prosecutor's comments satisfied the test in Daniels and that her comments did not constitute plain error.

K.B. next alleges that the prosecutor improperly suggested to the jury that there was duty to convict when she said the following:

This baby . . . did not deserve this, does not deserve this, did not deserve it. And we're here, members of the jury, to do justice and the evidence is crying out for justice for this baby, this helpless 9 1/2 month old boy who couldn't even tell us what happened.

Once again no objection was made, and our standard of review is the plain error rule.

It is improper for a prosecutor to suggest that the jury has a societal duty to convict. State v. Neal, 361 N.J. Super. 522, 536-38 (App. Div. 2003). See also State v. Buscham, 360 N.J. Super. 346, 364 (App. Div. 2003); State v. Acker, 265 N.J. Super. 351, 355-57 (App. Div.), certif. denied, 134 N.J. 485 (1993). We do not interpret the prosecutor's remarks to suggest a societal duty to convict. However, it was a blatant appeal to the emotions and sympathy of the jury toward the infant victim. The comments are troubling because emotional appeals have the capacity to shift the jury's attention away from the evidence. State v. Black, 380 N.J. Super. 581, 594-95 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Therefore, statements in summation urging the jury to convict out of sympathy for the victim are improper. State v. Lockett, 249 N.J. Super. 428, 434-35 (App. Div.), certif. denied, 127 N.J. 553 (1991). In close and sensitive cases where a child is the victim, emotional appeals by the prosecutor calculated to arouse sympathy for the victim have a strong potential to cause a miscarriage of justice. State v. W.L., 292 N.J. Super. 100, 111 (App. Div. 1996).

We find that the prosecutor's remarks constituted an improper attempt to elicit sympathy from the jury for J.B. Therefore, the issue presented is whether the remark constituted plain error requiring a reversal of K.B.'s conviction. We note that the improper remarks constituted a mere two sentences in the midst of a nearly sixty-page summation by the prosecutor. After careful review, we have determined that these fleeting and isolated remarks, although improper, did not have the clear capacity to produce an unjust result as required by the plain error rule.

Finally, K.B. contends that the prosecutor's summation was improper because of references to her mental condition that was unsupported by any expert testimony. The prosecutor's comments were as follows:

What do we know about her mental health? . . . [W]e know . . . that she suffers from panic attacks and anxiety from her statement, that she's on medication . . . and we also know that that is not all she suffers from, that she's indicated that she has avoidance problems. . . . .

She has an avoidance problem. She couldn't fix that herself. Webster's definition, avoidance, the act or practice of keeping away from or withdrawing from something undesirable. What is undesirable here, members of the jury? What she did to [J.B.].

Counsel for K.B. objected to the remarks and asked that the jury be instructed that there was no psychiatric testimony and they were to ignore the prosecutor's definitions of "disassociation" and "avoidance." The judge stated that he would issue a curative instruction as part of the general charge, and the defense agreed to this procedure. During the charge to the jury the court stated the following:

Comments by the attorneys are not evidence.

Any statements by the attorneys as to what the law may be or what medical terms may be or legal terms may be . . . should be disregarded by you if they conflict with the law as I am going to give it to you.

The prosecutor's comments regarding K.B.'s mental condition were based on evidence in the record, for K.B. acknowledged in her statement that she took medication for depression and anxiety and at times had social phobia and avoidance issues. To the extent that the prosecutor went beyond legitimate inferences by providing a definition of the terms "avoidance" and "disassociation," the error was properly and fully addressed in the judge's curative instruction which we assume was followed by the jurors. State v. Manley, 54 N.J. 259, 270 (1969).

K.B. further claims that the court's instructions on circumstantial evidence was inadequate and constituted plain error because it did not provide the jury with guidance as to how the jury was to reconcile circumstantial evidence with the presumption of innocence and that the charge did not instruct that K.B.'s "mere presence" in the bedroom where J.B. was sleeping was insufficient to convict. No objection was made to the court's charge, and the defense made no requested charge concerning "mere presence." The judge's charge on circumstantial evidence mirrored the Model Jury Charge. Once again we perceive no error, much less plain error.

K.B.'s remaining arguments on appeal with respect to her convictions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We next turn to K.B.'s sentence. She argues that the judge abused his discretion by failing to downgrade her second-degree convictions and sentence her as a third-degree offender. The judge found as aggravating factors the gravity and the harm inflicted on the victim and the need to deter. As mitigating factors, he found that K.B. had led a law-abiding life, that the crime was unlikely to reoccur, and that K.B.'s character indicated she was unlikely to commit another offense. The court then sentenced K.B. to concurrent five-year terms, the lowest sentence for second-degree crimes.

A judge's discretionary decision to downgrade a second-degree crime to sentence the defendant as a third-degree offender is limited to cases where the defendant provides "compelling" reasons separate from the outweighing of mitigating factors. State v. Megargel, 143 N.J. 484, 501-02 (1996). We find no abuse of discretion by the sentencing judge in declining to downgrade.

We next address F.B.'s arguments on appeal. They are as follows:

POINT I - DEFENDANT'S COUNSEL'S CONFLICT OF INTEREST DEPRIVED THE DEFENDANT OF THE UNDIVIDED LOYALTY OF COUNSEL AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.

POINT II - DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS COUNSEL'S ADMISSION OF PRIOR BAD ACT EVIDENCE THAT HIGHLY PREJUDICED HIS DEFENSE.

POINT III - THE TRIAL COURT'S CURATIVE INSTRUCTION IN REGARD TO THE PRIOR BAD ACT EVIDENCE OF [F.B.'S] NEGLIGENCE TOWARDS [S.B.] WAS INSUFFICIENT. (Not Raised Below.)

POINT IV - DEFENDANT WAS DENIED DUE PROCESS AND FUNDAMENTAL FAIRNESS WHEN THE TRIAL COURT REFUSED TO ALLOW HIM TO ARGUE THAT ANOTHER PERSON OTHER THAN CO-DEFENDANT MAY HAVE COMMITTED THE ASSAULT ON J.B.

POINT V - THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW DEFENDANTS TO WAIVE A JURY TRIAL.

We have addressed F.B.'s arguments IV and V earlier in the opinion and need not comment further.

We next consider F.B.'s contention that by representing both F.B. and K.B., his trial attorney had a conflict of interest which deprived F.B. of the assistance of counsel mandated both by the Sixth Amendment to the United States Constitution and the New Jersey Constitution. The right to counsel encompasses the right to effective counsel. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680, 699 (1942). Effective counsel must provide the client with undivided loyalty and representation that is "untrammeled and unimpaired" by conflicting interests. State v. Bellucci, 81 N.J. 531, 538 (1980); State v. Cottle, 194 N.J. 449, 467 (2008).

In State v. Land, 73 N.J. 24 (1977), the same attorney represented the husband and wife charged with possession of drugs and possession with intent to distribute. The wife was the only defense witness, and she sought to exculpate herself by implicating her husband. The wife was only convicted of possession while the husband was found guilty of both charges. The Supreme Court reversed the conviction, noting that in representing more than one defendant when conflicting positions may exist, an attorney's representation may not be as effective.

The inherent difficulty in representing more than one defendant in a criminal proceeding and in steering a course which will promote the interests of each, but will not be to the detriment of any one, exposes the infirmity of dual representation. [Id. at 30.]

Nonetheless, the Land Court recognized that parties may waive their right to independent counsel.

Underlying the principle that an attorney should represent only one client is the assumption that a conflict exists or may exist between co-defendants. Although not apparent, the conflict may surface during the course of the trial. However, there may be circumstances where no conflict exists.

Or, even if the possibility of divergence is present, the defendants tactically may desire one counsel. Since a single attorney eliminates reciprocal attacks and a joint defense may have a certain jury appeal, defendants may desire joint representation irrespective of the possible conflict. It is their right to have such representation, for parties may surrender their constitutional right to independent counsel. [Id. at 32.]

However, when a potential conflict of interest exists, prejudice is presumed. Bellucci, supra, 81 N.J. at 543. Moreover, the Court later stated that there was a "strong presumption" against waiver of a defendant's constitutional right to independent counsel. This presumption against single representation of two or more defendants is incorporated in the Rules of Court. R. 3:8-2 states:

No attorney or law firm shall be permitted to enter an appearance for or represent more than one defendant in a multi-defendant indictment without securing permission of the court.

Moreover, in State v. Norman, 151 N.J. 5, 24-25 (1997), the Court enunciated a two-tier test for evaluating claims of conflict of interest:

If a private attorney or any lawyer associated with that attorney, is involved in simultaneous dual representations of co-defendants, a per se conflict arises and prejudice will be presumed, absent a valid waiver. Cf. Land, supra, 73 N.J. at 36 (finding joint representation by a private attorney of husband and wife in a criminal matter to have "apparent" potential for conflict and finding prejudice to be "obvious"). Otherwise, the potential for actual conflict of interest must be evaluated, and if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel.

See also State v. Bell, 90 N.J. 163, 171 (1982).

A conflict may be waived to permit the same attorney to represent more than one defendant only after a Land hearing when the judge explains the constitutional right of each defendant to independent counsel and the possible consequences of joint representation to each defendant, after which each defendant gives a knowing and voluntary waiver. Land, supra, 73 N.J. at 32-33; Bellucci, 81 N.J. at 544.

Where there is a presumed conflict as in the instant case, the defendant may waive under Land and its progeny. However, the court may reject the waiver if it was made without full understanding or if the waiver might lead to an unjust result. State v. Carreaga, 249 N.J. Super. 129 (Law Div. 1991). The court may also decide that later factual developments require separate representation and may so order. State v. Loyal, 164 N.J. 418 (2000); State v. Medina, 254 N.J. Super. 668 (App. Div. 1992).

In this case a Land hearing took place on April 4, 2005, about a year before trial. F.B. was placed under oath, and Judge Paley questioned him as follows:

Q: [F.B.], you are a defendant in this matter in which you are charged with assault against your adopted child, correct?

A: Yes.

Q: And the lady to your left is your wife, correct?

A: Yes.

Q: And she's a co-defendant with you, correct?

A: Yes.

Q: And both of you have elected up to this point to hire [trial counsel], who is to your right, as your attorney, correct?

A: Yes.

Q: And you have heard me on other occasions when you have been here ask [trial counsel] probably on each occasion whether that situation should continue?

A: Yes I have.

Q: Because you do have the right to have your own independent counsel, do you understand that?

A: Yes, I do.

Q: And your wife has the right to have her own independent counsel, do you understand that?

A: Yes.

Q: It is conceivable that at some point evidence like a hair on a wall or other evidence may be such to implicate either you but not your wife or your wife and not you in this case, do you understand that?

A: Yes I do.

Q: But up to this point, it is your preference to continue with [trial counsel]'s representation at the same that he represents your wife?

A: Yes.

Q: Are you satisfied with the advice [trial counsel] has given you?

A: Yes. . . . .

Q: Do you understand, [F.B.], ordinarily there is a rule of evidence which prevents a spouse from testifying against another spouse?

A: Yes.

Q: And, [F.B.], that can be waived by disclosing confidential information about communications to a third party, do you understand that?

A: Yes.

Q: Now we have counsel of record and I don't want to start a whole analysis about the evidential rules of privilege, but do you understand that at some point there may come a time when the spousal privilege that you have may be waived by virtue of a communication to a third party?

A: Yes.

A year later, the day before trial, Judge Nieves questioned defendants:

THE COURT: Mr. and Mrs. [B.] in a few minutes your lawyer is going to ask you some very important questions because they deal with constitutional rights and I don't know if you will recall when that trial memorandum was signed. Do you remember that?

[K.B.]: Yes

THE COURT: It was signed in front of me, remember?

[K.B.]: Yes

THE COURT: And I asked both of you, you know, the question pursuant to and I think it is Green. Listen, both of you have rights to go to trial with this case being represented by different counsel, separate counsel. Remember we talked about that? Yes, ma'am?

[K.B.]: Yes.

THE COURT: So I asked you that question and you gave me your response that you both wanted [trial counsel] to represent you. Is that right?

[K.B.]: Yes.

[TRIAL COUNSEL]: I think [the assistant prosecutor] is looking for an assent from [F.B.] as well.

[F.B.]: Yes.

The comments by Judge Paley and Judge Nieves indicate that the right of each defendant to independent counsel was discussed with defendants on multiple occasions. We are satisfied that F.B. fully understood a potential conflict but nonetheless desired joint representation with K.B. He knowingly and voluntarily waived his right to separate counsel and understood that some evidence might implicate his wife and not him, and vice versa.

While there was an inherent conflict of interest in the dual representation of F.B. and K.B., we are satisfied that there was a valid waiver by both defendants. That being the case, the potential or actual conflict of interest must be evaluated, and, if established, "a great likelihood of prejudice must be shown . . . to establish constitutionally defective representation." Norman, supra, 151 N.J. at 25.

F.B. claims that he was prejudiced by the dual representation because of trial counsel allowing evidence to be placed before the jury that F.B. on a prior occasion had left S.B. alone in the car, and the police were called. He asserts that this act of parental negligence was absolutely irrelevant and extremely prejudicial to F.B. but not K.B.

The incident was mentioned before the jury on two occasions. The first was F.B.'s admission in his video statement to police that was played to the jury. Defense counsel did not object or seek deletion of the incident from the videotape. Moreover, defense counsel brought up the incident again during his direct examination of K.B. At that point the prosecutor objected to the introduction of a "prior bad act" into evidence. Defense counsel explained that he asked K.B. about the matter because he was concerned the prosecutor would bring out on cross-examination the fact that the incident was not disclosed to the adoption agency monitoring J.B.'s placement with K.B. and F.B. Additionally, counsel said he brought out the matter "to demonstrate that [K.B.] is being truthful to the jury." This trial tactic of defense counsel in raising the issue was to support the credibility of K.B. and was clearly not in the interest of F.B. However, the court gave the following curative instruction at the conclusion of the case.

During the course of trial there was introduction of the fact that on a prior occasion [F.B.] ran to the store to fix a headlight on the car and left the young child [S.B.] in their car. Then the police were contacted. Normally such evidence is not permitted under our rules of evidence, and they should not be considered by you in your deliberations in this particular case. It does not show a predisposition because this happened and that happened, and . . . that's not permitted.

We find that the court's instruction was sufficient to cure any prejudice arising from disclosure of the incident.

F.B. also contends that the dual representation was prejudicial to him because counsel subordinated his defense to K.B. by permitting her to testify that F.B. took care of J.B. when she was sleeping and that she did not discover that F.B. had given J.B. Tylenol with codeine until they were at the hospital. However, it is clear that regardless of the testimony by K.B., these factual matters were before the jury by F.B.'s videotaped statement played to the jury during the State's case. There was no additional prejudice from K.B.'s testimony.

There were no antagonistic defenses in this case. To the contrary, the position of both defendants from the inception to conclusion was that neither K.B. nor F.B. was responsible for the injuries suffered by J.B. The defense strategy was explained by defense counsel in responding to the State's concern respecting dual representation subsequent to dismissal of the assault charge against F.B.: "As you are aware, there is a unity of defense in this matter, that the [B.'s] maintain they did not injure the child."

We find that there was not a significant conflict of interest which posed a "great likelihood of prejudice" to F.B. by dual representation of defense counsel prior to and throughout the trial.

The remaining arguments by F.B. are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20090805

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