updated 1/22/2011 2:32:38 PM ET 2011-01-22T19:32:38

Lawyers for a mother accused of suffocating her 3-year-old son and then burying him in a park will be allowed to present an insanity defense at her murder trial.

District Judge Stan Whitaker gave approval Friday to Tiffany Toribio's attorneys to present the defense. She is accused of suffocating Ty Toribio in May 2009 and burying him in sand at an Albuquerque park's playground.

Toribio has pleaded not guilty to murder, child abuse and other charges. She reportedly told police after her arrest that she was homeless and didn't want her son to have the same kind of life.

The decision wasn't opposed by prosecutors, despite a law saying they should have been given notice within three weeks of her arraignment in June 2009, according to KRQE-TV.

The district attorney's spokesman, Pat Davis, said the state agreed not to fight Toribio's request to use the insanity defense because if they had won and Toribio was found guilty, she could use it in an appeal.

"Everybody recognizes she needs the opportunity to present the defense that she is most comfortable with and she thinks is most appropriate in this case," Davis said.

Defense lawyer Jeff Buckels told Whitaker that it took much longer than three weeks to develop a defense strategy.

"That's 20 days after the arraignment," Buckels said. "Nobody on the face of the earth was going to be able to say what their defense or offense would be of this case."

Whitaker rescheduled the start of the trial from March to October.

If a jury finds Toribio not guilty by reason of insanity, she could be sent to a mental hospital if she's considered a danger to society or released. A guilty verdict means life in prison.

Toribio was sleeping in the park after being kicked out of her mother's home and a friend's apartment days before her son's death because she was ignoring the boy and withholding affection, investigators have said.

A mother playing with her children at a park spotted a black sneaker sticking out of the sand underneath the playground equipment and found the body.

It took nearly a week before the boy was identified and his mother arrested.

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Information from: KRQE-TV, http://www.krqe.com

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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