Date: 01-27-2017

Case Style:

Case Number: A-1580-11T4

Judge: Carmen H. Alvarez

Court: SUPERIOR COURT OF NEW JERSEY

Plaintiff's Attorney:

Catherine A. Foddai, Senior Assistant Prosecutor

Defendant's Attorney:

Stephen W. Kirsch, Assistant Deputy Public Defender

Description: Defendant purchased a $300,000 life insurance policy and
$200,000 accidental death benefit insuring Scharf's life on May
23, 1991. He was the primary beneficiary; the parties' son,
Jonathan, ten years old at the time of the murder, was the
contingent beneficiary. Scharf's therapist, Patricia Teague, who
had been treating Scharf for depression since July 1990, testified
that Scharf told her defendant obtained the insurance policy to
use as security for the purchase of a condominium in which the
couple could reside while divorcing.
The policy's definition of "accident" included murder, unless
the named beneficiary was the killer. Although Scharf's fall from
the Cliffs at the Palisades (the Cliffs) on September 20, 1992,
was initially investigated as suspicious, no conclusions were
reached. Initially, the death certificate listed the cause of
death as "multiple fractures and injuries," and the manner of
death as "pending investigation." In January 1993, the manner of
death was amended to "unable to be determined."



4 A-1580-11T4


After the life insurer received notification of Scharf's
death in September 1992, claim forms were forwarded to defendant
on four separate occasions. None were returned.
Because the manner of death was not established, and the
beneficiary did not apply for the proceeds, the insurer paid the
policy benefits, $730,154.27, into the New Jersey Department of
Treasury, Unclaimed Property Unit (Unit) on April 30, 2001, in
defendant's name. After deposit, the Unit contacted defendant
regarding the funds. He eventually responded, and on April 24,
2003, received $770,650.83.
Scharf's Death
In August 1992, Scharf reported to Teague that defendant
invited her to picnic on the Cliffs. Scharf refused and told
defendant "he was crazy[.]" Scharf's divorce complaint was not
served on defendant until September 8, 1992, but he had known
since February that Scharf had retained counsel to represent her
in the divorce.
Numerous friends and family members, including the parties'
son, testified about Scharf's fear of heights. Additionally,
various witnesses testified about Scharf's fear of defendant and
her belief that he was going to kill her.
The son confirmed that Scharf initially declined defendant's
invitation. However, he wanted to visit a friend and knew if his



5 A-1580-11T4


parents went out, they would take him to his friend's home. He
"begged" Scharf to let him go, and she eventually changed her mind
and agreed to spend the evening with defendant.
Shortly after 8:00 p.m. that evening, police arrived at
Rockefeller Lookout at the Cliffs in response to a report that
someone had fallen. Defendant approached Officer Paul Abbott of
the Palisades Parkway Police and said his wife had disappeared
from the cliff edge. Abbott described defendant's demeanor as
calm and controlled, which he considered unusual. After other
officers arrived, defendant escorted them up a trail created by
hikers, which was overgrown with foliage, bushes, and branches,
and portions of which were blocked by tree limbs. Aided by
flashlights, they reached a flat rock at the cliff edge that was
shaped like a bench seat.
When the men arrived at a cable fence running along the cliff
face, Abbott asked defendant where Scharf had fallen. Defendant
pointed to the bench seat at the cliff edge. The location had no
view either of the George Washington Bridge or the northern
Manhattan skyline, and was past a warning sign which said "[c]liff
and steep slopes are dangerous . . . do not climb cliffs or
slopes."
Defendant initially told police that he and Scharf were headed
to dinner and a comedy club in New York City. In a Coleman cooler,



6 A-1580-11T4


defendant packed a bottle of wine, two wine cooler drinks, cheese,
and a blanket for their trip. After dropping their son off at his
friend's house, defendant and Scharf decided to stop at Rockefeller
Lookout first, a spot defendant claimed they visited frequently.
They arrived at around 7:00, and Scharf consumed some wine in the
car before she ventured out. The son testified he had never heard
his parents mention going to the Cliffs before that night.
Defendant told Lowell Tamayo, another officer, that he and
Scharf were sitting on the rock by the cliff's edge, hugging and
kissing, when he stood up intending to retrieve more wine and a
blanket from his car. When he turned around, Scharf was gone.
Defendant sat in the back of the patrol car while the search
began, although he would intermittently walk around the vehicle.
At one point, Tamayo saw defendant mouth Scharf's name, on another
occasion he knelt by the car and seemed to be praying, although
he never cried.
Police and fire personnel brought in lights and rappelled
down the side of the cliff. They discovered Scharf's open
pocketbook, contents strewn about, approximately ten feet down the
cliff side on a ledge. They eventually located Scharf's body
wedged facedown between a tree and a large rock. The tree was
119.3 vertical feet from the bench seat, and 52 horizontal feet
from the cliff. One of the officers found blood and human tissue



7 A-1580-11T4


six to eight feet above ground on the tree, and the blood appeared
to have drained downward.
Defendant's Statements Regarding Scharf's Fall

Defendant was driven to a nearby police station after the
discovery of the body. While being transported, he recited a Hail
Mary prayer, and volunteered to Lieutenant Walter Siri that he and
Scharf were walking along the cliff edge when she asked him to go
back to the car and get the blanket, that she slipped, and he
could not see her anymore.
Detective Ronald Karnick interviewed defendant, who claimed
he and Scharf were going to New York City when they wound up at
"their spot." They were kissing and hugging when defendant became
uncomfortable and told Scharf he was going to get a blanket and
wine from the car. They both stood up, Scharf said "no, don't
go," and fell forward. He called out her name but received no
reply. When Abbott shone a flashlight inside defendant's car, he
saw an empty wine cooler bottle on the floor as well as a plastic
Coleman cooler.
At Karnick's request, defendant provided a handwritten
statement that reads:
[Scharf] and I were kissing and hugging on the flat rock by the trail overlooking the river about 7:30[ a]nd I was uncomfortable when I asked [Scharf] or told her I was going to get the blankets and the wine. She said



8 A-1580-11T4


"no don't go." As I got up to get the wine and blankets, she got up and then fell forward and I didn't see her anymore. She didn't answer me.

While providing the statement, defendant asked if Scharf was
alive or dead. Karnick did not know, and after defendant signed
the statement, Karnick returned to the scene. Once informed that
his wife's body had been found, defendant did not seem very upset.
Early the following morning, defendant consented to be
photographed and to the search of his vehicle. Karnick found a
red nylon bag, with a blue nylon bag inside, on the back seat of
the car, the Coleman cooler, and a full bottle of wine. Inside
the Coleman cooler was a wine glass, one full and one empty bottle
of wine coolers, and a steak knife. Inside the blue bag was a
green blanket, ace bandages, two white towels, a candle, a plastic
bag with receipts, one box of wine crackers, and a small jewelry
box containing a chain and gold cross. At the bottom of the bag
was a claw hammer.
For some time before Scharf's death, defendant had been
involved with Kathleen Scanlon. She ended the months-long
relationship shortly after learning defendant was not single. The
two remained in contact, however, and eventually defendant told
her that Scharf was filing for divorce.



9 A-1580-11T4


On September 21, defendant phoned Scanlon and said he had
some bad news, that his wife had died. He told her that he and
Scharf had gone to dinner, she had been drinking, and they decided
to talk about the divorce at the Cliffs. Scanlon, unfamiliar with
the spot, asked defendant about it. He responded, "well there's
an area where we used to go when we used to date and she felt very
comfortable." Defendant told Scanlon the location where Scharf
fell had a barrier, that they had walked beyond it, and "one minute
she was there and the next minute she was gone." When Scanlon
pressed him for additional information, defendant became upset and
ended the conversation.
On September 22, defendant met with Detective James Lynam of
the Palisades Interstate Parkway Police and Detective Terrence
Ulver of the Bergen County Prosecutor's Office. During this
interview, defendant claimed he and Scharf were going to an 8:30
p.m. show at a comedy club in New York and planned to eat either
before or after at the Plaza Diner in Fort Lee. They packed a
Coleman cooler with two wine coolers, a blanket, cheese, and a
bottle opener.
Defendant told the officers that he and Scharf had been to
the Cliffs some thirty to forty times, and that they had "their
spot" at the site. He said they last visited the location in May
1992.



10 A-1580-11T4


When defendant and Scharf arrived at approximately 7:00 p.m.,
it was dusk. They remained in the parking area for about fifteen
minutes and drank some wine. They then walked down a path to a
fence along the cliff face, stopping several times along the way
to kiss.
Defendant said that when they arrived at the bench seat,
Scharf sat between his legs facing south at the cliff's edge. At
some point, he stood up because he was uncomfortable from sitting
on his wallet. After zipping up his pants, he told Scharf that
he was going back to the car to get wine and a blanket. Scharf
turned to him and said, "no, don't go," and fell to her knees.
She rolled forward off the cliff, and did not scream or cry out
as she fell. He was standing some two or three feet away from
Scharf when this occurred. Defendant called her name about ten
times, retrieved a flashlight from the car, and returned to the
rock. Receiving no response, he flagged a passing motorist to ask
for help.
Defendant told the officers his marriage had been "open" for
the past thirteen years and that he had been with fifty to sixty
other women during his relationship with Scharf. He also informed
them that his wife two weeks prior had served him with divorce
papers alleging abuse and infidelity. Defendant denied having
been abusive except for one episode. He admitted to currently



11 A-1580-11T4


being involved with two other women, insisting he was ending his
relationships with them, and that the trip to the Cliffs was a
first step in an effort to reconcile with Scharf.
Asked to explain the presence of the claw hammer in the nylon
bag, defendant claimed he had used it to fix a kitchen drawer and
had meant to leave it in the garage. Instead, he threw it into
the nylon bag with the picnic items. When the officers searched
his home, they saw no sign that the kitchen drawer defendant
identified as the one he had fixed had been repaired. They did
not seize the drawer as evidence.
Later that day, defendant said he and Scharf left their home
at about 6:00 p.m. and drove to the Cliffs, discussing their
pending divorce on the way. Once they arrived, they parked and
kissed before walking to the bench seat, where they continued
kissing until defendant said he was uncomfortable and tried to
return to the car to get a blanket and wine. Scharf asked him not
to go and tried to get up. She got into a squatting position,
tripped, and fell forward over the cliffs.
Defendant claimed his relationship with Scharf was improving
but still distant because he was dating other women, and he
believed she was seeing someone else as well. He said he had been
attempting to end his relationships earlier in the month with the



12 A-1580-11T4


two women he was involved with because he hoped to reconcile his
marriage.
While the police were searching his home, defendant sat with
two officers, one of whom was a very religious person who tried
to comfort defendant. Defendant observed, "you don't believe me."
When the officer, who had not asked defendant any questions,
responded "I believe an accident happened. It was an accident[,]"
defendant said, "no," and put his head down. He asked to speak
to a priest.
Expert Testimony
In the original autopsy report, Dr. Maryann Clayton, of the
Bergen County Medical Examiner's Office, indicated she found
lacerations on the scalp, including a large one that spanned the
top of Scharf's head, together with skull fractures on the right
side of her face. Both sides of Scharf's face had abrasions and
scrapes, her right eye socket, nose, and cheek were fractured, and
her eyeball was torn. Her upper chest area had a nine-inch-long
and four-inch-wide laceration extending from the right armpit down
and across the left breast. The skin on top of the laceration was
scraped. Scharf had scrapes on her arms and legs, and bruising
to her lower legs and hand. Her right shoulder was dislocated and
her ribs were fractured. Scharf's back was not injured, however.



13 A-1580-11T4


Her serious head injuries were prominent on the right side, and
the main chest injury was only to the right upper chest wall.
Scharf's sternum and collar bones were also fractured. The
sac around her heart was torn, the chambers of the heart were
lacerated, the lungs bruised, and the upper lobe of the left lung
and her spleen were torn, as was the aorta, and, superficially,
the liver. The skull was extensively damaged.
In August 2005, Clayton consulted with Dr. Michael Baden, a
pathologist retained by the Prosecutor's Office, regarding
Scharf's death. Scharf's autopsy had been Clayton's first of a
death connected with the Cliffs; by 2006, she had performed
autopsies on a number of Cliffs deaths. She also reinterviewed
John DeSimone, a medical examiner's investigator who witnessed the
removal of Scharf's body.
In 2006, in addition to her review of the autopsy records and
additional interviews, Clayton for the first time walked the
roadway up the rocky terrain to the tree Scharf's body had struck.
The officers who located Scharf accompanied her, indicating the
places on the tree where they remembered seeing blood and hair.
Viewing the scene from the perspective of the location of the
body, as opposed to just the upper level from which it descended,
aided Clayton's understanding of the manner of death.



14 A-1580-11T4


As a result of these renewed efforts, Clayton concluded that
the injuries were not consistent with a person passively falling
over the Cliffs. For Scharf to have established contact with the
tree at a point six feet above the ground, some force had to propel
her out and away from the rock face. The death certificate was
amended to indicate the cause of death was homicide, and defendant
was charged with Scharf's murder.
Baden had a lengthy career as a medical examiner for New York
City and New York State, during which he had gained extensive
experience in deaths caused by falls from great heights, including
from mountains and cliffs. He testified that the manner of death
determination depended in large part on the distance from the
point of the fall, and that accidental death usually resulted in
impact within three to five feet from the point of departure.
Baden therefore agreed with Clayton that the cause of death was
homicide.
Baden inspected the scene, including the bench seat from
which defendant alleged Scharf had fallen. He climbed upward from
where Scharf was found and noted the absence of a smooth area that
would have allowed the body to roll down from the top to the bottom
without being stopped in its trajectory by vegetation or rocks.
Baden considered the victim's injuries to be inconsistent
with an accidental fall. He believed the lack of injuries on



15 A-1580-11T4


Scharf's back was consequential: if her descent had been passive,
she would have many marks on her body from impact injuries with
rocks and vegetation, in contrast with the series of injuries
resulting from the impact with the tree.
Baden also concluded that given the distance from the cliff
edge to the point of impact, Scharf would have had to strike the
tree with sufficient force to cause the extensive fractures and
internal injuries she suffered. She could not, in his opinion,
have developed that much propulsion without being pushed, even if
she had jumped.
At the trial, defendant presented two experts. The first,
Steven Schorr, an engineer, based his calculations in part on
laser measurements of the cliff face. He opined that in order to
fall cleanly without striking any objects along the way, a person
would have to leave the cliff at thirteen miles per hour. Schorr
said it was impossible for an object to strike the tree "unimpeded
even if a body was pushed or thrown from the cliff." Thus, the
body could have landed in its final position simply because it
struck unidentified trees, ledges, or rocks on the way down.
Defendant's second expert, Dr. Cyril Wecht, a pathologist,
disagreed with the notion that Scharf's injuries were caused by a
single strike with a tree. Based on his review, he concluded that



16 A-1580-11T4


the ledge below the cliff edge at the bench seat area likely
catapulted the body outward.
Wecht believed the sliding wounds to the victim's face and
legs were consistent with multiple impacts on rocks and other
shrubbery on the way down. He testified that if the victim's head
had struck the tree in the manner alleged by the State, as a result
of a single fall from the cliff, a membrane covering the brain,
the dura mater, "would have burst open[,]" and the skull would
have had a depressed fracture on the top, which it did not. Wecht
also opined that Scharf struck multiple rocks on the way down, and
was already in the process of dying when her trajectory was
interrupted by the tree. He questioned the likelihood that anyone
could lift a body and hurl it out so that it landed fifty-three
feet away.
Jury Instructions
Although the trial judge instructed the jury on murder, no
instruction was requested or given on manslaughter. No objection
was made to the jury charge.
II.
A.
Because defendant did not object to the trial court's jury
instructions, we will disregard any error "unless it is of such a
nature as to have been clearly capable of producing an unjust



17 A-1580-11T4


result." State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R.
2:10-2). The error must "be sufficient to raise 'a reasonable
doubt . . . as to whether [it] led the jury to a result it otherwise
might not have reached.'" Ibid. (quoting State v. Jenkins, 178
N.J. 347, 361 (2002)). A finding of plain error in jury
instructions "depends on an evaluation of the overall strength of
the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Only where the record "clearly indicates" that a defendant
could be acquitted of the greater charge and convicted of the
lesser is the trial court required to instruct as to a lesser
included charge. State v. Walker, 203 N.J. 73, 86 (2010). A
judge is not obligated to "sift meticulously through the record
in search of any combination of facts supporting a lesser-included
charge." Id. at 86-87 (citation omitted).
A lesser-included charge should be given when the evidence
provides a rational basis for the jury to acquit defendant of the
greater while convicting of the lesser. Funderburg, supra, 225
N.J. at 81. There must be "'obvious record support for such [a]
charge,'" and "'the facts in evidence [must] clearly indicate the
appropriateness of that charge.'" Ibid. (quoting State v. Powell,
84 N.J. 305, 319 (1980)); State v. Savage, 172 N.J. 374, 397
(2002). "[I]f the evidence is jumping off the page" then the



18 A-1580-11T4


lesser-included offense must be charged. State v. Denofa, 187
N.J. 24, 42 (2006).
Reckless manslaughter is a lesser-included offense of murder.
Jenkins, supra, 178 N.J. at 361. It is a criminal homicide
committed recklessly. N.J.S.A. 2C:11-4(b). It requires proof
that a defendant has caused death, ignoring the possibility that
death might result from his conduct. Jenkins, supra, 178 N.J. at
363. State v. Crisantos, 102 N.J. 265, 278 (1986).
When such a charge is not requested, however, in "the absence
of evidence that the killing was anything less than knowing or
purposeful, we cannot say that the trial court committed plain
error by failing to charge . . . reckless manslaughter." State
v. Ogelsby, 122 N.J. 522, 535 (1991).
B.
Turning to the elements of the offense, the New Jersey Supreme
Court has found the factual predicates necessary for a guilty plea
to reckless manslaughter were satisfied where a defendant
"acknowledged that his conduct was reckless and that it was a
contributing cause of [the victim's] death." State v. Campfield,
213 N.J. 218, 224 (2013). In that case, the defendant punched an
intoxicated victim, forced him to remove his clothing at gunpoint,
and chased him into a wooded area in severe winter weather. Id.
at 223-24. The victim drowned in a creek. Id. at 224.



19 A-1580-11T4


While pleading guilty, the defendant admitted under oath to
the assault, and acknowledged it was reckless to force a naked,
intoxicated man on a snowy night into an isolated area. Id. at
235-36. The Court held this was sufficient to establish reckless
manslaughter, despite the fact the defendant could not have
anticipated the victim's death by drowning. Id. at 236-37.
In order for the statutory elements to be satisfied, the
actor must have acted recklessly, and there must be a "causal
nexus between his conduct and the victim's death." Id. at 235.
Although the defendant in Campfield could not have foreseen that
the victim would drown, he admitted knowing "several facts that
exacerbated the risk that [the victim] would die as a result of
his conduct, and that those facts were relevant to both mens rea
and causation." Id. at 236-37. He knew that the intoxicated
victim had fallen and struck his head, and that he was injured and
bleeding. Id. at 225. The defendant emptied the victim's pockets
while he was unconscious, dragged him ten or fifteen yards, and
when he awoke, punched him repeatedly in the face. Id. at 225
26. When the victim struggled, he threatened him with a handgun
and forced him to undress. Id. at 226.
Campfield quoted the mental state necessary for criminal
recklessness:



20 A-1580-11T4


As the Code uses the term, recklessness involves conscious risk creation. It resembles acting knowingly in that a state of awareness is involved but the awareness is of risk that is of probability rather than certainty; the matter is contingent from the actor's point of view. Whether the risk relates to the nature of the actor's conduct or to the existence of the requisite attendant circumstances or to the result that may ensue is immaterial; the concept is the same. The Code requires, however, that the risk thus consciously disregarded by the actor be substantial and unjustifiable; even substantial risks may be created without recklessness when the actor seeks to serve a proper purpose. Accordingly, to aid the ultimate determination, the Code points expressly to the factors to be weighed in judgment: the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct and the circumstances known to him in acting.

[Id. at 232-33 citing to II The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:2-2, at 41-42 (1971).]

In other words, the actor must have an improper purpose and the
conduct must create the risk of death.
Campfield exposed the intoxicated victim to the elements
after he had significantly injured him —— displaying an improper
purpose and a conscious disregard of a substantial and
unjustifiable risk. Id. at 232. That established both his mens
rea and his conduct. See also State v. Williams, 190 N.J. 114,



21 A-1580-11T4


124 (2007) (recklessness, as defined in the statute, requires the
conscious disregard of a substantial, unjustifiable risk).
In Jenkins, the victim died of injuries suffered in a fall
down a staircase after defendant hit him on the head with a brick.
Supra, 178 N.J. at 354. The defendant was convicted of murder and
appealed arguing, among other things, that the court should have
instructed the jury on manslaughter. Id. at 356-57. At trial,
the defendant had objected to the jury being charged as to any
included offenses. Id. at 356. A new trial was ordered because
"the proper inquiry in distinguishing murder from the two degrees
of manslaughter relates to defendant's state of mind as to the
risk of death." Id. at 363.
Reckless manslaughter occurs when a "defendant disregard[s]
only a 'possibility' of death [. . . .]" Id. at 363. Because a
jury "could have rationally concluded that defendant struck the
victim not knowing that serious bodily injury would result in the
victim's . . . death, manslaughter, aggravating and reckless,
should have been charged." Ibid.
A defendant's conduct must, however, be more than merely
negligent, it must be wrongful. Campfield, supra, 213 N.J. at
232-33. The actor's purpose must be improper, in addition to the
conduct carrying a possibility that the victim would die as a
result. Id. at 232. The defendant must, for example, have



22 A-1580-11T4


inflicted bodily injury while disregarding the possibility of
death. Jenkins, supra, 178 N.J. at 363.
In State v. Ruiz, 399 N.J. Super. 86, 98 (App. Div. 2008), a
defendant was charged with killing a toddler, who died as a result
of internal bleeding. We concluded a jury could find that the
manner in which he hit the child did not reflect any "intention
or awareness that his actions would probably cause the child's
death." Id. at 98.
In State v. O'Carroll, 385 N.J. Super. 211, 232 (App. Div.
2006), a defendant strangled a victim who was wielding a knife.
The jury found defendant guilty of first-degree murder; on appeal
he argued that the trial judge should have instructed the jury on
reckless manslaughter, although at trial he had requested the
judge omit the charge. We ordered a new trial because the "jury
could have found that rather than intending [the victim's] death
. . . defendant consciously disregarded a known risk . . . ." Id.
at 217.
C.
Unlike the cases we have cited, the defendant in this case
claims he acted in a purely negligent manner, resulting in the
possibility that death would flow from his conduct. His only
defense was the theory of accident. He never admitted to any
wrongdoing, such as striking, pushing, or strangling his wife.



23 A-1580-11T4


Defendant now asserts that taking his intoxicated wife to sit
at the edge of the Cliffs was sufficiently wrongful conduct which
disregarded the possibility of death. We disagree. The conduct
defendant claims he engaged in is entirely dissimilar to striking
a victim on the head with a brick, severely injuring and undressing
an intoxicated robbery victim in freezing weather, forcefully
striking a crying baby, or strangling a victim who may have been
in possession of a knife.
More is required to impose criminal liability. Defendant
repeatedly told police he intended to reconcile with Scharf or
that they were just going out for the evening. Thus, his alleged
purpose or mental state was not wrongful. If defendant's purpose
was not unlawful, even if he willfully took his wife to a dangerous
place and observed her drink to excess, his conduct cannot be said
to constitute reckless manslaughter. N.J.S.A. 2C:2-2(b)(3)
defines reckless conduct as conduct engaged in which "considering
the nature and purpose . . . and the circumstances known to [the
actor], its disregard involves a gross deviation from the standard
of conduct that a reasonable person would observe in the actor's
situation."
Moreover, N.J.S.A. 2C:2-3 states:
When the offense requires that the defendant recklessly . . . cause [a] particular result, the actual result must be within the risk of



24 A-1580-11T4


which the actor is aware . . . the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, a dependent on another's volitional act to have a just bearing on the actor's liability . . . .

Even though the conduct in question raised the possibility of harm
to the victim, i.e. accompanying an intoxicated person near a
cliff edge, that act was too "remote," "accidental in its
occurrence," and "dependent on another's volitional act."
Defendant's experts agreed that Scharf's death was
accidental. Defendant argued to the jury that an intoxicated
Scharf merely slipped and fell over the cliff edge. Had the jury
accepted this theory, it would have acquitted defendant. That
argument shifted the event to the realm of innocent mishap, one
in which if anyone was responsible for the fall, it was Scharf
herself. The defense theory that this was one of many accidents
which have occurred at the Cliffs simply did not allow for a
lesser-included reckless manslaughter instruction. Given the
defense theory, and the facts developed at trial, no evidence of
reckless manslaughter jumps off the page. See Denofa, supra, 187
N.J. at 42.
In sum, the jury heard two explanations for Scharf's death.
The State presented circumstantial evidence that defendant took
the victim to the Cliffs and intentionally pushed or threw her to



25 A-1580-11T4


her death. This evidence included his purchase of life insurance,
his relationships with other women, Scharf's own statements
regarding her fear of defendant, that she had filed for divorce,
and his own inculpatory statements to police. Defendant's theory
was that the victim, while intoxicated, accidentally slipped or
lost her balance and fell over the edge. In support of the theory
of accident, he presented expert testimony. Neither competing
scenario established a rational basis upon which the jury could
have found defendant guilty of reckless manslaughter.

Outcome: