On certification to the Superior Court, Appellate Division, whose opinion is reported at 334 N.J. Super. 264 (2000).
The opinion of the court was delivered by: LaVECCHIA, J.
Argued September 10, 2001
This appeal presents an opportunity for the Court to consider whether uncorroborated, "other-crimes" testimony provided by a co-defendant cooperating with the prosecution should be banned per se because it cannot satisfy the "clear and convincing" standard of proof required for the admission of other-crime evidence. Prior to trial, defendant David Hernandez sought to limit the testimony of George Gerardi, who, although indicted with defendant for certain drug offenses, agreed to give testimony against defendant in exchange for a more lenient sentence. Defendant sought to exclude Gerardi's testimony concerning the business relationship between the two men in the two months preceding defendant's arrest. The trial court admitted the testimony, and ultimately, the jury convicted defendant.
The Appellate Division reversed and remanded for a new trial. State v. Hernandez, 334 N.J. Super. 264, 274 (2000). The panel held that Gerardi's uncorroborated testimony could not satisfy the clear and convincing standard of proof that is a prerequisite to the admission of other-crime evidence under State v. Cofield, 127 N.J. 328 (1992):
We are satisfied, however, that the uncorroborated testimony of a co-defendant testifying against defendant pursuant to a favorable plea agreement, and particularly the testimony of this co-defendant, falls so far short of clear and convincing evidence as to mandate the exclusion of his other-crimes evidence. [State v. Hernandez, supra, 334 N.J. Super. at 271.]
We granted certification, 167 N.J. 88 (2001). Although it is not clear that the Appellate Division adopted a per se exclusionary rule concerning accomplice testimony in respect of other crimes, the issue is squarely presented and in our view should be addressed. We now reject the application of a per se rule excluding other-crime evidence provided through the uncorroborated testimony of a co-defendant cooperating with the prosecution. Nonetheless, we affirm the Appellate Division's reversal and remand for a new trial because of the unduly prejudicial nature of a portion of Gerardi's testimony, and because the limiting instruction was inadequate to counsel the jury appropriately on the permissible uses of Gerardi's other-crime testimony.
Defendant and Gerardi were indicted on charges of possession of a controlled dangerous substance (crack-cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count One); possession with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and b(3) (Count Two); and possession with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 and 2C:35-5a (Count Three). Gerardi was given a favorable plea bargain on his agreement to testify for the State at defendant's trial. At a pre-trial hearing, defense counsel moved to exclude Gerardi's testimony concerning the alleged details of his business relationship with defendant during the two months that preceded their arrest on February 11, 1997. The assistant prosecutor represented Gerardi's testimony at the pretrial hearing as follows:
Now, Mr. Gerardi also said that he would testify as to his relationship, his prior relationship, with Mr. Hernandez; that they had known each other in school; that on 12/12/96, December 12th of 1996 when Mr. Gerardi got out of prison, he went looking for Mr. Hernandez knowing that he could make money with him selling for him and, in fact, that's what he began to do at that time and that's when the business relationship was started where he got 30 dollars for every hundred dollars in sales and also the way this was done exclusively was that Mr. Gerardi would always hand the money over to Mr. Hernandez and Mr. Gerardi would always hold the crack, reason being Mr. Hernandez if they were arrested wouldn't have any drugs on him.
Also that Mr. Gerardi said that he had -- he was aware that Mr. Hernandez went into he said around 140th Street in New York or in Manhattan to buy crack. He had actually gone with him on one run in this period sometime between 12/12/96 and 2/11/97.
Defense counsel objected to that testimony noting that there was no conspiracy count in the complaint and no counts concerning any action other than the events that occurred on February 11, 1997. Accordingly, he asserted that the proffered testimony was more prejudicial to defendant than it was probative of the events that took place on the day of arrest. The trial court disagreed, stating:
THE COURT: Doesn't the Prosecutor -- I mean you don't -- it won't necessarily be very unusual for somebody to meet somebody on the street and say do you want to start dealing drugs with me.
There's almost always some kind of prior relationship and these things allegedly -- and these are all allegations, this is entirely up to the jury, but two people don't allegedly start dealing together on [sic] a vacuum on that day. There has to be some type of prior coming together, normally.
How does the Prosecutor explain their association; why one trusts one another, et cetera, if he can't go into some sort of background? I don't know how he's to present his case, that day, we were doing this and, before this, it was our arrangement, this is what he paid me. I would be asking him to try his case in a two-by-four vacuum.
[Defense counsel]: I don't agree with that, but I respect your Honor's statement. If we're going to deal with that, I would ask for a hearing outside the presence of the jury
The following facts were adduced at trial. Officer Henry Morales testified that he and his partner set up a surveillance of the corner of River Street and Sixth Avenue in the City of Paterson on February 11, 1997. The area was known for its high incidence of drug trafficking. The surveillance vantage point was an elevated position within twenty feet of a pool hall that was the focus of the surveillance. Officer Morales observed a woman, later identified as Martha Sanchez, approach defendant and Gerardi. Both were standing in front of the pool hall. Officer Morales saw Sanchez hand paper currency to Gerardi while defendant, who was paying attention to what was transpiring, stood a few feet away. The officer observed defendant and Gerardi engage in conversation before Gerardi pulled a paper bag from the right sleeve of his jacket and removed an object from the bag. He handed the object to Sanchez. Officer Morales then observed Gerardi hand the paper currency to defendant. Following that transaction, Officer Morales and his partner arrested Gerardi and defendant. A search revealed that Gerardi had in his possession a paper bag containing eleven baggies filled with suspected crack-cocaine. He also possessed a glassine envelope containing suspected heroin. A search of defendant produced a total of $363 in cash in denominations of twenty dollar bills or smaller.
Gerardi testified next. He stated that a few days after he was released from Yardville Youth Correctional Facility on December 12, 1996, he ran into defendant, a long-time acquaintance. During their brief exchange, defendant asked whether Gerardi was interested in "making a little money here and there." Gerardi understood that to mean selling drugs and agreed. He testified that he began selling crack-cocaine for defendant sometime around the 1996 Christmas holidays. The arrangements were that for every twenty baggies he would sell for $5 per bag, defendant would pay him $30. Gerardi testified that he sold crack-cocaine for defendant on approximately twenty occasions between December of 1996 and February 11, 1997, when he was arrested. He stated that defendant would remain in close proximity while Gerardi would make a sale because defendant did not trust him with the sale proceeds. Gerardi had once used drug sale proceeds to purchase heroin for his personal habit. Gerardi also testified that it was his understanding that defendant purchased his drugs in New York City. On one occasion between the end of December 1996 and February 11, 1997, he accompanied defendant to New York where defendant purchased a block of crack cocaine for between $300 and $400.
Gerardi testified that on February 11, 1997, he met defendant on River Street some time between 6:00 and 6:30 p.m. Defendant asked him if he was "alright," which Gerardi understood as an inquiry concerning whether he needed heroin before beginning to sell for defendant. After he told defendant he needed a bag of heroin, defendant gave him $10, told him to "get straight," and that when he returned he could sell the crack-cocaine. Gerardi left the area and purchased a bag of heroin. He then returned to River Street to rejoin defendant. At 6:45 p.m. a police car pulled along the sidewalk where Gerardi was standing and the officer instructed him to leave the corner. Gerardi complied, but returned once the police left the area. He and defendant then went into a nearby restaurant on River Street, and while they were waiting for the food defendant had ordered, defendant handed Gerardi a plastic bag containing approximately twenty-five baggies filled with crack-cocaine. Gerardi placed the plastic bag into a paper bag and then put the bag into the right sleeve of his jacket.
Gerardi exited the restaurant to sell the drugs. Defendant followed him outside and sat in a nearby doorway. A man approached Gerardi and inquired whether he could purchase nine bags for $40. Gerardi explained that this was known as a "play" or discount, and because he was not authorized to "give play," he consulted defendant who authorized the sale. Gerardi remained outside the restaurant and engaged in a few more transactions, immediately giving all proceeds to defendant after each sale. The two then returned to the restaurant. Gerardi testified that he had to eat before he could take the heroin he had purchased earlier.
Once they finished eating, Gerardi and defendant returned to the sidewalk on River Street. Gerardi stood directly in front of the pool hall located at 591 River Street and defendant stood approximately ten feet away. Gerardi was approached by a woman he knew by the name of "Candy Sanchez." Sanchez wanted to purchase three baggies for $13. Unauthorized to make the sale without defendant's approval, Gerardi told Sanchez to ask defendant. Sanchez then called over to defendant to ask whether he would agree to the "play." Defendant, speaking directly to Sanchez, agreed to the sale. Gerardi gave three bags of crack to Sanchez after she handed him $13. He then handed the money to defendant. Immediately after that transaction, police arrested both Gerardi and defendant.
On direct examination, Gerardi testified that while he was in jail awaiting trial, defendant offered to pay him between $50 and $100 per week for the entire period of his incarceration if Gerardi would testify that defendant had no involvement in the drug transaction and that the drugs and money belonged solely to Gerardi. He asked Gerardi to testify that when Gerardi handed the money to defendant it was because defendant owed him money. Gerardi agreed to defendant's terms. However, when a few weeks went by and defendant, who was out on bail, did not pay the promised money, Gerardi decided against "taking the weight" for defendant. He subsequently entered into a plea agreement that was conditioned on his cooperation with the State in the criminal case against defendant.
As might be expected, defense counsel engaged in a withering cross-examination of Gerardi designed to attack his character. Defendant never testified, but the defense theory was that defendant had nothing to do with Gerardi's drug sale on February 11, 1997. According to that theory, Gerardi handed defendant cash on February 11, 1997, because he owed defendant money. Nonetheless, the jury convicted defendant of Counts Two and Three, the possession with intent to distribute charges. The jury acquitted defendant on Count One, simple possession. The trial court refused to mold the verdict to dismiss Counts Two and Three on the basis of an inconsistent verdict, and sentenced defendant to eight years with a four-year period of parole ineligibility.
On appeal, the Appellate Division reversed the conviction and remanded for a new trial. The panel stated that it need not decide the first prong of the Cofield analysis, that is, whether Gerardi's testimony was probative of a fact in issue that was directly involved in the proof of the crime, although it expressed some doubt on the subject. The panel concluded that the other-crime evidence presented through Gerardi's testimony was incapable of meeting the clear and convincing standard of proof required under the third prong of Cofield because it was "uncorroborated testimony of a co-defendant testifying against [the] defendant pursuant to a favorable plea agreement." State v. Hernandez, supra, 334 N.J. Super. at 271.
The Appellate Division, however, went on to address the specifics of Gerardi's testimony. Noting that Gerardi "admitted that he lies under oath with impunity," felt "hostility to defendant," and testified against defendant as a "required term of the lenient plea bargain" he had struck, the court concluded that Gerardi's testimony fell far short of the clear and convincing standard. Id. at 272. Arguably, then, the Appellate Division was not adopting a per se rule, but deciding the case on the facts before it and on its view of the credibility of Gerardi's testimony. The State and the Attorney General, however, claim that the court adopted a per se rule and urge us to address the propriety of such a rule. The parties and amicus curiae have briefed thoroughly the question whether this Court should adopt a per se exclusionary rule when uncorroborated other-crime testimony is offered by a cooperating co-defendant. We will therefore address both that question and, because we reject a per se rule, the application of Cofield to the specific evidence in the record before us.
New Jersey Rule of Evidence 404(b) excludes evidence of an accused's other crimes or acts offered for purposes of showing the propensity of the person to commit a crime. N.J.R.E. 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of ...