than one predicate felony, it need not be unanimous on
which felony forms the basis of the felony murder
conviction. State v. Harris, 141 N.J. 525, 561-63
(1995).
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).
Moreover, since felony murder is a strict liability crime,
it cannot be mitigated to manslaughter by proof of
provocation. State v. Crisantos (Arriagas), 102 N.J. 265,
271-72 n.7 (1986).
A fetus not born alive cannot be the victim of a
criminal homicide. State in the Interest of A.W.S., 182 N.J.
Super. 334 (J. & D.R. Ct. 1980), aff’d, 182 N.J. Super.
278 (App. Div. 1981).
B. Indictments
For the crime of purposeful or knowing murder, the
indictment need not state whether the murder was
committed by the defendant’s own conduct. “Own
conduct” is not an element of purposeful or knowing
murder. It is merely a triggering device for the penalty
phase of a capital prosecution. State v. Simon, 161 N.J.
416, 439 (1999).
A defendant may be convicted of felony murder
based upon an unindicted predicate felony provided that
he is given fair notice, at the time of trial, of the predicate
felony used to satisfy the requirements of the felony
murder statute. State v. Branch, 155 N.J. 317 (1998).
C. Time Limitations
There is no time limitation on a prosecution for
purposeful or knowing murder, felony murder,
aggravated manslaughter, or manslaughter. N.J.S.A.
2C:1-6a.
The length of time that elapses between an initial
assault and the death of the victim is not a bar to
prosecution for criminal homicide. N.J.S.A. 2C:11-2.1.
D. Causation
In a murder prosecution, where the State and the
defendant offer different theories of causation, the jury
should be instructed that if it determines that the
victim’s death occurred in a manner different than that
designed or contemplated by the defendant, then it
should decide whether the death was not too remote to
bear on the defendant’s liability. State v. Martin, 119
N.J. 2 (1990).Liability for murder or manslaughter can be based on
a failure to act where the duty to perform the omitted act
is imposed by law. In this case, the defendant, who was
the father of the three-year-old victim or who had
assumed responsibility for his care, failed to act to stop
the beating by the child’s mother which resulted in the
child’s death. State v. Bass, 221 N.J. Super. 466, 488-90
(App. Div. 1987), certif. denied, 110 N.J. 186 (1988).The defendant could be convicted of murder on the
theory that the victim’s death as a result of jumping from
an eleventh story window was “purposefully” and
“knowingly” caused by defendant’s conduct where the
victim was weak from defendant’s beating with his fists
and a shovel the day before to the point that she was
unable to walk unaided, and where the victim, a drug
user, called out for drugs and made repeated pleas and
entreaties while defendant was beating her during the last
fifteen minutes of her life. If the victim misjudged her
circumstances, it was because defendant had caused her
powers of perception to become impaired, an event which
was foreseeable to defendant, if not within his actual
design. State v. Lassiter, 197 N.J. Super. 2 (App. Div.
1984).A defendant who caused “brain death” of the victim
was criminally responsible for homicide even though the
death did not actually occur until the respirator was
turned off. State v. Watson, 191 N.J. Super. 464 (App.
Div.), certif. denied, 95 N.J. 230 (1983).The removal of life support from a victim who was not
brain dead was not an intervening cause sufficient to
insulate a defendant from liability for homicide. State v.
Pelham, 328 N.J. Super. 631 (Law Div. 1998).Defendant could be found guilty of knowing or
purposeful murder where intoxicated victim’s death from
asphyxiation as a result of smoke inhalation and carbon
monoxide poisoning was caused by defendant’s setting
fire with an accelerant to the wooden structure which he
knew was occupied by individuals who had been
drinking alcoholic beverages. State v. Martin, 119 N.J. 2
(1990).Where a pregnant woman was assaulted, and, as a
result of medical intervention, the fetus was born alive
but subsequently died by reason of a chain of
circumstances precipitated by the assault upon the
mother, the actor may be criminally responsible for