Charles Kane Jr. is accused of killing 3-year-old Elijah Ulbrich of Wildwood.

Dale Gerhard

CAPE MAY COURT HOUSE - A state judge will decide whether a taped statement Charles Kane Jr. gave to police can be used against him at his murder trial.

Kane, 36, of Lower Township, is accused of first-degree murder in the Feb. 25, 2010, death of Elijah Ulbrich, a 3-year-old boy he was baby-sitting in North Wildwood.

Shackled and clad in a tan jail jumpsuit, Kane appeared Friday in state Superior Court for a status conference. He is being held at the Cape May County Jail on $600,000 bail.

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County prosecutors said Kane pushed the boy into a refrigerator with enough force to fracture his skull. The child slipped into a coma and died three weeks later at Cooper University Hospital in Camden.

The case appears to be heading for trial. Kane pleaded not guilty to the charges in April. He previously rejected a plea deal on the lesser charge of aggravated manslaughter, prompting the state to charge him with murder, which could put him in state prison for as long as 30 years if he is convicted.

Judge Raymond Batten scheduled a hearing for Jan. 17 to determine whether Kane was made aware of his Miranda rights and freely provided a 90-page statement to North Wildwood police or whether his statement was coerced.

These rights provide that criminal suspects are not obligated to talk to police and may request a lawyer even if they cannot afford one.

During questioning, Kane allegedly told police he lost his temper when the child wet his pants.

"I pushed him a little too hard into the refrigerator. I was angry ... but I didn't think I pushed him that hard," Kane allegedly told police.

"We're going to challenge the admissibility of the statement on the basis that it was the product of coercion and was involuntary on his part," said John Tumelty, Kane's lawyer.

Tumelty stopped short of calling the statement a confession. At trial, prosecutors will have to prove not only that Kane committed serious bodily injury to the child but also that he knew that the child's injuries were grievous enough to kill him, Tumelty said.

"The child had a lump on his forehead. Kane picked him up and put him on the couch. He thought the child fell asleep," Tumelty said.

Kane's mother, Christina Ulbrich, left the child in Kane's care for about 45 minutes while she went to do laundry. When she returned, she found the child unconscious. Kane and Ulbrich stopped to get help from North Wildwood police while taking the child to Cape Regional Medical Center. A severe winter storm prevented a helicopter from responding and hampered rescue efforts. The child later underwent surgery at Cooper University Hospital.

An autopsy determined Elijah died from complications of blunt head trauma.

The defense also will ask the judge to suppress photographs, including those taken of the child when he was in a coma and of the child's autopsy, Tumelty said.

First Assistant Prosecutor J. David Meyer said the state will take the position that the taped statement was obtained lawfully.

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