murder. The court rejected the defendant’s argument
that because the fetus was born alive only as a result of
medical science and the skill of the doctor, that was an
intervening event that should not transform his assault of
the mother into a homicide of the surviving infant. State
v. Anderson, 135 N.J. Super. 423 (Law Div. 1975), aff’d,
173 N.J. Super. 75 (App. Div.), certif. denied, 85 N.J. 124
(1980).
Causation for felony murder consists of two
elements: the actor’s conduct must have been the “but
for” cause of death, and the death must have been
“probable consequence” of the actor’s conduct. N.J.S.A.
2C:2-3e; State v. Martin, 119 N.J. 2 (1990); State v.
Smith, 210 N.J. Super. 43, 55-56 (App. Div.), certif.
denied, 105 N.J. 582 (1986). A defendant should be
exculpated from liability for felony murder only when a
death occurs in a manner that is so unexpected or
unusual, that is, it was too remote, accidental in its
occurrence, or too dependent on another’s volitional act,
that he could not justly be found culpable for the result.
State v. Martin, 119 N.J. at 33, State v. Pantusco, 330 N.J.
Super. 424, 441 (App. Div. 2000).
A jury could properly convict the defendant of felony
murder when he caused an automobile accident while
fleeing from the commission of a robbery and the driver
of other vehicle, who had a preexisting heart condition,
suffered a fatal heart attack. State v. Smith, 210 N.J. Super.
43 (App. Div.), certif. denied, 105 N.J. 582 (1986).
II. MANSLAUGHTER (N.J.S.A. 2C:11-4)
- Aggravated Manslaughter - actor recklessly causes
death under circumstances manifesting extreme
indifference to human life. N.J.S.A. 2C:11-4a. - Manslaughter - actor recklessly causes death.
N.J.S.A. 2C:11-4b(1). - Passion/Provocation Manslaughter - actor
commits a criminal homicide which would otherwise be
murder but was committed in the heat of passion
resulting from a reasonable provocation. N.J.S.A. 2C:11-
4b(2). - Manslaughter While Eluding - actor causes the
death of another while fleeing or attempting to elude a
law enforcement officer. N.J.S.A. 2C:11-4b(3).
Manslaughter is not a lesser-included offense of
felony murder. State v. Pennington, 273 N.J. Super. 289,
298-99 (App. Div.), certif. denied, 137 N.J. 313 (1994).The difference between aggravated manslaughter
and manslaughter is the degree of the risk of death.
Manslaughter involves a possibility that death will occur,
while aggravated manslaughter involves a probability.
State v. Bowens, 108 N.J. 622, 638 (1987); State v. Curtis,
195 N.J. Super. 354, 364-65 (App. Div.), certif. denied,
99 N.J. 212 (1984). Where the State shows that there
was a probability rather than a “mere possibility” that
death would result, the reckless conduct will be found to
have been committed “under circumstances manifesting
extreme indifference to human life.” State v. Bowens, 108
N.J. at 638. The distinguishing element between
aggravated manslaughter and manslaughter, that the
defendant recklessly caused death “under circumstances
manifesting extreme indifference to human life,” focuses
on the circumstances under which the defendant acted,
rather than on the defendant’s state of mind. State v.
Curtis, 195 N.J. Super. at 364-65.Evidence that the defendant was suffering from an
epileptic seizure at the time of the stabbing and was
unaware of and unable to control his actions required a
charge on the lesser-included offenses of aggravated
manslaughter and manslaughter since the jury could
have concluded that the defendant lacked the cognitive
faculties to have acted “purposely” or “knowingly” but
that he retained a sufficient awareness of what he was
doing and control over his actions to have acted with a
“conscious disregard of a substantial and unjustifiable
risk.” State v. Washington, 223 N.J. Super. 367 (App.
Div.), certif. denied, 111 N.J. 612 (1988).A person who fires a gun believing it is not loaded
may be convicted of manslaughter if the State proves that
the person was reckless in forming his belief that the gun
was not loaded. State v. Sexton, 160 N.J. 93 (1999).An honest but unreasonable belief in the need for the
use of force, that is, “imperfect self-defense,” does not
constitute mitigation for either aggravated manslaughter
or manslaughter because they are crimes with a reckless
culpability requirement. State v. Pridgen, 245 N.J. Super.
239, 246-48 (App. Div.), certif. denied, 126 N.J. 327
(1991). See also State v. Colon, 298 N.J. Super. 569 (App.
Div.), certif. denied, 150 N.J. 27 (1997).In a prosecution for aggravated manslaughter as a
result of vehicular homicide, the jury must find that the
defendant caused the deaths by reckless operation of his