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State v. M. S.

Superior Court of New Jersey, Appellate Division

December 17, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
M. S., [1] Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2013

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-01-0018.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Ann Hersh, Assistant Prosecutor, of counsel and on the brief).

Before Judges Sabatino and Hayden.

PER CURIAM

Defendant M.S. appeals the trial court's denial of her application for post-conviction relief ("PCR"). We affirm.

After a 2005 jury trial, defendant was found guilty of aggravated manslaughter, N.J.S.A. 2C:11-3a, for causing the death of her twenty-one-month-old twin son, D.S. ("Donald"). The jury also convicted defendant of two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4, with respect to both the decedent Donald and his twin brother, J.S. ("James"). The trial court sentenced defendant to a twenty-three-year custodial term on the manslaughter count, a concurrent seven-year term for endangering the welfare of Donald, and a consecutive eight-year term for endangering the welfare of James.

On direct appeal, we upheld defendant's conviction and sentence in an unpublished opinion. State v. M.S., No. A-3241-05 (App. Div. July 30, 2008). The Supreme Court denied certification in November 2008. 197 N.J. 14 (2008).

Defendant also has a third son, C.S. ("Christopher"), who was five years old at the time of Donald's death. The children had previously been removed from defendant's care by the Division of Youth and Family Services, due to what appeared to be physical abuse of her infant twins. However, after a year, the children had been returned.

Six months after the children were returned, defendant called 9-1-1 on June 4, 2003 to report that one of her twins was not breathing. The operator gave defendant instructions by phone about how to perform infant CPR until the first responder arrived.

When the first responder, Police Officer Scott Brown, arrived, he took over the CPR efforts. Shortly thereafter, paramedics arrived and continued the officer's attempt to revive the child. However, Donald was unresponsive throughout these attempts. He was declared dead shortly after he arrived at a local hospital. In addition, James was examined and found to have sustained significant recent physical trauma.

The autopsy showed that Donald had suffered severe blunt force trauma, including to his head, groin and abdomen. The trauma that caused his death was to his heart. The coroner who performed the autopsy, Dr. Raafat Ahmad, initially stated that Donald died within fifteen to twenty minutes of the trauma to his heart, ...


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