STATE OF NEW JERSEY VS. STEPHEN F. SCHARF

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."







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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







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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







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"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.







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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.







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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







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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







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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







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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.