A jury convicted defendants, the mother and father of a two-year-old daughter, of reckless manslaughter and aggravated manslaughter respectively, and endangering the welfare of a child. The child died of blunt force head trauma and suffered numerous other internal and external injuries. Both defendants provided statements to law enforcement, but neither admitted causing the child's death, and the State had no eyewitnesses to any assault.
The State contended both defendants could be found guilty as principals or accomplices, and it urged the judge to provide instructions pursuant to N.J.S.A. 2C:2-6(c)(1)(c) (subsection 1(c)). That provides one may be an accomplice of another if "[w]ith the purpose of promoting or facilitating the commission of an offense . . . [and] [h]aving a legal duty to prevent the commission of the offense, fails to make a proper effort so to do[.]"
Relying on this court's decision in State v. Bass, 221 N.J. Super. 466 (App. Div. 1987), the only reported decision dealing with accomplice liability under subsection 1(c), and at the prosecutor's urging, the judge's jury charge carved out a separate basis for accomplice liability under Bass. The charge failed to tell jurors that in order to find a defendant guilty under subsection 1(c), they must find that defendant's failure to act was accompanied by a purpose to promote or facilitate the other's commission of a crime. The court specifically disapproved of Bass to the extent it implied otherwise, and reversed defendants' convictions.