CAPE MAY COURT HOUSE - Murder suspect Charles Kane Jr.'s attorney, John Tumelty, said Thursday he plans to make a motion to dismiss the murder indictment against his client based on the Prosecutor's Office's presentation to the grand jury.

Kane, 35, of Lower Township, is charged with killing 3-year-old Elijah Ulbrich. The boy was found unresponsive in his North Wildwood home Feb. 25, 2010, and was in a coma until he died on March 17, 2010. Prosecutors charge that Kane beat the young boy while he was babysitting him.

Kane had been expected to plead guilty to aggravated manslaughter in October, but he chose not to take part in the plea agreement, which came with a 20-year prison term. He faces between 30 years to life in prison if convicted of the murder charge.

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On Thursday, Tumelty said he would file a motion to dismiss the murder charge based on the instructions given to the grand jury that handed up the indictment.

Tumelty said Kane is charged with non-intentional serious bodily injury, murder, and he questioned the way the definition of that specific charge was given.

"We're challenging the prosecutor's explanation of the law to the grand jury," Tumelty said.

In 2009, a Cape May County judge dismissed another murder indictment in the case of George J. Carty III following questions about that grand jury presentation. In that case, the judge found the state's witnesses mischaracterized key pieces of evidence. Carty was re-indicted 13 days later.

Tumelty, who is Kane's new attorney, is still reviewing discovery in the case, which First Assistant Prosecutor J. David Meyer said was quite voluminous at about 1,500 pages.

The two will present their arguments on the motion to dismiss to Superior Court Judge Kyran Connor on April 11.

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