January 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFRED AUGUSTA SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-09-1243.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Cuff and Baxter.
Defendant Alfred A. Smith appeals from his conviction following a trial by jury on charges of third-degree forgery of a check, N.J.S.A. 2C:21-1(a)(2) (count one); and third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (count two). The court sentenced him to an extended term of ten years imprisonment, five years without parole on each count concurrent to each other, but consecutive to a Maryland sentence defendant was then serving. We agree with defendant's claim that the admission of an extraordinary amount of unduly prejudicial evidence, including prior bad act evidence, denied him a fair trial. We reverse.
On her way to work on March 8, 2005, Betty Ressel placed a $5,000 check payable to VISA in her curbside mailbox at her home in Austin, Texas. Uneasy about leaving such a large check in the mailbox, her husband, Warren Ressel, decided to retrieve the check from the mailbox; however, when he arrived at the mailbox, the check was gone. Ressel immediately contacted his bank, Bank of America, to report the stolen check and to request a stop-payment. The bank closed that account and provided Ressel and his wife with a new account number.
Each day, Ressel went to the local bank branch to review the activity on the closed checking account with bank representatives to determine which checks were authorized and which were being fraudulently issued in his name. He testified that one check in particular, written to "Giant" in Mount Laurel, New Jersey, in the amount of $134.10 and debited from his checking account on May 20, 2005, was forged. Ressel knew that the check was forged because the signature was not his and the check was imprinted with the wrong heading and bank symbol.
Ressel also testified that at some point after the $5,000 check was stolen from his mailbox, he received a note from Lackland Storage Company in Elizabeth, New Jersey, thanking him for opening a self-storage unit at its facility. Ressel had not been in New Jersey in more than ten years and had not rented the storage unit in question. The note, addressed to "Will" Ressel, had been sent not to Ressel's current address, but instead to his wife's parents' former address, which was the same address that was on the check stolen from Ressel's mailbox. Over defendant's objection, a photograph of the contents of the storage bin, full of consumer merchandise, was admitted in evidence.
On cross-examination Ressel was asked about other checks that were drawn on the bank account that he closed after discovering the forged Giant check. Ressel explained that a man named David Duncan from Vallejo, California, whom neither he nor his wife knew, had apparently written checks on the account in question after Ressel had closed it. As we explain later in this opinion, the prosecutor subsequently asked a different State's witness extremely damaging questions about defendant's relationship to David Duncan.
The majority of the testimony offered by the State was presented by Detective David Hill of the Montgomery County police department in Maryland. Hill described evidence seized pursuant to a search warrant from an apartment allegedly belonging to defendant at 12650 Grey Eagle Court in Germantown, Maryland. Over defendant's objection that the Germantown apartment was not his, the court permitted the State to introduce the following evidence seized from that apartment: an invoice from onetwothreechecksonline.com sent to defendant; a bill from Checkstoorder.com addressed to a person named Tony Smith; receipts for various consumer items purchased by defendant; a blank checkbook refill, laminating sheets, paper edge trimmer, check stock paper and other computer equipment; photographs of credit card activation documents in the name of Warren Ressel; Yahoo directions from 1445 Brace Road in Cherry Hill to the Giant food store on Ark Road in Mount Laurel; and directions from the Giant food store in Mount Laurel to a Giant food store in Bensalem, Pennsylvania and from the Giant food store in Mount Laurel to a Giant food store in Brooklyn.
During Hill's testimony, the prosecutor played the Giant supermarket surveillance videotape from the day the forged $134.10 check drawn on Ressel's account was allegedly presented at the Giant supermarket in Mount Laurel. The videotape was grainy, and after the videotape was played for the jury, Hill identified defendant as the person presenting the $134.10 check. Hill explained that he made the identification by comparing still photographs of defendant, obtained from various sources, to the man shown on the surveillance videotape.
Finally, Hill stated that there was "no doubt in his mind" that defendant lived at the Germantown apartment. Hill based that opinion on an interview with the apartment manager and a review of the lease as well as the letters, receipts, invoices and bank statement found at the apartment and addressed to defendant.
Hill also testified that he was able to lift fingerprints from the paper shredder in the Grey Eagle Court apartment and "the prints came back to [defendant]." When asked whether defendant "was the only person residing at that particular location," Hill said, "[f]or the last two years, yes."
Next, the prosecutor asked Hill whether, based on his investigation, he was treating David Duncan "as a suspect or a victim," to which Hill answered "a victim." Hill proceeded to explain that as a result of his investigation, he was able to establish that defendant was the person "who was using" Duncan's name. When asked "how positive" he was of that conclusion, Hill answered "crystal clear."
On cross-examination, defense counsel asked Hill how he knew that Duncan was a victim if he had never spoken with him. Hill responded that he "spoke to an investigator with Wells Fargo who was conducting an investigation where [Duncan] was the victim of identity theft." Hill acknowledged that nobody from his office or from the Secret Service had traveled to California to take a statement from Duncan.
Defense counsel's cross-examination of Hill elicited information harmful to defendant, including evidence of a California driver's license with defendant's name and photograph that was found in the Grey Eagle Court apartment. Such testimony tended to establish that the apartment and its contents belonged to defendant. At another point, while questioning Hill about the fingerprints found on the shredder, defense counsel asked Hill to acknowledge that the fingerprints "came back in the name of a James Farrell, not [defendant]," to which Hill answered "James Farrell is an alias of Alfred Smith. They have the exact SBI number which means they have exact same prints." This too was extremely damaging.
The State also called Gerald LaPorte, a senior document analyst employed by the United States Secret Service. LaPorte described his reconstruction of shredded documents found in the Germantown, Maryland apartment, including five checks bearing the name Warren Ressel and a Texas driver's license containing defendant's photograph, but bearing Ressel's name and address. LaPorte explained that the shredded checks were produced by using an ink jet printer whereas commercially produced documents use a completely different process known as offset lithography.
After the admission of these exhibits in evidence during LaPorte's testimony, the judge provided the following limiting instruction:
Members of the jury, the evidence . . . that you just saw on the overhead display . . . with respect to the evidence of those acts, you are not to consider them admissible to prove the disposition of a person in order to show that such a person acted in conformity with criminal activity. The evidence is admitted, may be admitted, may be considered by you for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The judge issued a similar instruction during his final charge to the jury.
Defendant was the sole defense witness. He testified that for the past twenty or twenty-five years he lived in Escondido, California, commenting that he traveled back and forth to Maryland to visit his girlfriend, who lives near Germantown.
When asked about the apartment on Grey Eagle Road in Germantown where police executed the search warrant, he acknowledged that he leased the apartment two years earlier as an alternative to staying with his girlfriend when he came East. Defendant insisted that at the time of the police raid he no longer had control of the apartment or its contents because he sublet it a few months earlier to Duncan, who lived there with several other people. Defendant denied that he wrote the $134.10 check to Giant.
On cross-examination, the prosecutor confronted defendant with the Texas driver's license found in the Grey Eagle Court apartment that contained Ressel's personal information but defendant's photograph. When asked by the prosecutor if he was the person depicted in the photo on that license, defendant answered no. When the prosecutor pressed him, defendant changed his answer and said "[t]hat was my picture 20 years ago. I'm gray. You see any gray hair on that picture?" At that point, defendant again denied being the person depicted in the photograph on the driver's license.
On appeal, defendant raises the following claims:
I. THE COURT'S FAILURE TO ADJOURN TRIAL, SUA SPONTE, WHEN THE DEFENSE WAS CONFRONTED WITH REAMS OF DISCOVERY DURING TRIAL RESULTED IN A DENIAL OF DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
II. THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL WHEN THE COURT ADMITTED A PLETHORA OF HIGHLY PREJUDICAL EVIDENCE IN VIOLATION OF N.J.R.E. 403 AND 404(b). (PARTIALLY RAISED BELOW)
A. Evidence was admitted in violation of N.J.R.E. 403 and 404(b).
1) Warren Ressel
2) Gerald LaPorte
3) David Hill
B. S-35, A photograph of the book entitled "Catch Me If You Can" was erroneously admitted into evidence after exclusion by the court. (Not Raised Below)
III. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN DETECTIVE HILL, WHO TESTIFIED AS A LAY WITNESS, PROFFERED AN OPINION THAT ASSUMED THE ULTIMATE FACT THAT THE DEFENDANT WAS GUILTY AS CHARGED. (NOT RAISED BELOW)
IV. THE COURT FAILED TO GIVE AN IMMEDIATE CURATIVE INSTRUCTION WHEN DETECTIVE HILL STATED THAT SMITH'S FINGERPRINTS WERE LINKED TO HIS ALIAS WITH THE FBI. (NOT RAISED BELOW)
V. IMPERMISSIBLE REFERENCE WAS MADE TO THE SEARCH WARRANTS EXECUTED AT THE MARYLAND APARTMENT IMPLYING THAT SMITH COMMITTED OTHER CRIMES. (NOT RAISED BELOW)
VI. THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED SMITH A FAIR TRIAL. (NOT RAISED BELOW)
VII. SMITH WAS SENTENCED AS A PERSISTENT OFFENDER TO AN EXTENDED TERM OF TEN YEARS WITH A FIVE YEAR PAROLE BAR, CONSECUTIVE TO AN OUT-OF-STATE SENTENCE WHICH TERM IS MANIFESTLY EXCESSIVE.
A. The court illegally imposed extended terms on both counts of the indictment.
B. The quantum of the sentence is excessive.
C. The court erred in imposing a consecutive sentence.
In order to provide context for our analysis of the unduly prejudicial evidence that was admitted, we review the elements the State was required to prove to establish defendant's guilt on the two counts of the indictment. On count one, third-degree forgery of a check, the State was required to prove that defendant: 1) with the intent to defraud; 2) issued a check in the name of Warren Ressel; 3) knowing that Ressel did not authorize such issuance. N.J.S.A. 2C:21-1(a)(2). To prove defendant's guilt on count two, uttering a forged instrument, the State was required to prove that defendant offered the check to another as a genuine check, knowing that it was forged. N.J.S.A. 2C:21-1(a)(3); see also State v. Gledhill, 67 N.J. 565, 572 (1975).
Defendant was not, however, charged with the crime of identity theft. Identity theft occurs when a person impersonates another or assumes that person's identity for the purpose of obtaining a benefit for himself or for the purpose of defrauding another. N.J.S.A. 2C:21-17(a)(4).
We also emphasize that defendant was charged with forgery of only one check, namely the $134.10 check payable to Giant supermarket. He was neither charged with multiple acts of forgery nor with multiple acts of uttering a forged instrument. Defendant was merely charged with forging and then passing one check.
With these principles in mind, we proceed to an analysis of the evidence that was admitted at trial. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. State v. Lykes, 192 N.J. 519, 534 (2007). We must sustain the trial court's ruling "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)). Only in instances where a trial court does not analyze the admissibility of evidence of prior bad acts under the four-prong test established in State v. Cofield, 127 N.J. 328 (1992), will we conduct a plenary review of the judge's decision. Lykes, supra, 192 N.J. at 534.
Before we begin our review of the evidence that was admitted, we pause to comment on one circumstance permeating the entire trial. In particular, at the time defendant was indicted on the instant charges, he was serving a Maryland sentence. He was brought to New Jersey pursuant to the provisions of the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-3. That statute requires the New Jersey trial to be completed within 180 days of the time the State and the judge were notified of defendant's demand for trial, unless defendant consented to an enlargement of that time.*fn1
Because defendant refused to consent to an enlargement of the 180-day timeframe, the court and counsel were confronted with an exceedingly difficult situation. In particular, when the prosecution witnesses, all whom were from out-of-state, appeared at trial, each brought with him numerous missing pieces of discovery, including the videotape of the $134.10 Giant supermarket transaction. In fact, after the jury was selected, the State produced 297 pages of discovery that neither side had ever seen. As is evident from the record, the judge was willing to grant an adjournment to afford defendant the time necessary to review the newly-produced discovery, if defendant was willing to consent, but defendant refused to do so. He argues in Point I that the judge's failure to sua sponte adjourn the trial--when the defense was confronted with reams of discovery during trial--denied him a fair trial. Because defendant refused to consent to an enlargement, a sua sponte adjournment had the potential to jeopardize the State's ability to prosecute defendant. We therefore reject the argument defendant raises in Point I.
In Point II, defendant argues that he was deprived of his right to a fair trial when the court "admitted a plethora of highly prejudicial evidence in violation of N.J.R.E. 403 and 404(b)." He further maintains that the "unrestrained admission of approximately 100 items of evidence resulted in a denial of [his] right to a fair trial. The evidence exposed the jury to redundant, misleading and highly prejudicial information, including other-crime evidence that skewered the deliberations in favor of conviction."
N.J.R.E. 403 provides for the exclusion of relevant evidence whenever "its probative value is substantially outweighed by the risk of . . . undue prejudice . . . or misleading the jury . . . ." N.J.R.E. 403. A judge should exclude evidence pursuant to N.J.R.E. 403 if the proffered evidence diverts jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence. State v. Thompson, 59 N.J. 396, 421 (1971). Before a trial court even addresses whether the probative value of evidence is substantially outweighed by prejudice, the evidence must be "relevant." N.J.R.E. 401. Evidence is "relevant" whenever it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Ibid.
N.J.R.E. 404(b) provides that except as otherwise provided by N.J.R.E. 608*fn2, "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). However, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.
Evidence relating to other crimes must be handled with particular caution, because, even when probative of an issue in dispute, "'other-crime evidence has a unique tendency to turn a jury against the defendant,' and poses a 'distinct risk' of distracting the jury from 'an independent consideration of the evidence that bears directly on guilt itself.'" State v. Reddish, 181 N.J. 553, 608 (2004) (citations omitted). Such "evidence has the capacity to 'blind the jury from a careful consideration of the elements of the charged offense' and so tarnish a defendant that he may be convicted on the basis of what he once was rather than what he has recently done." Lykes, supra, 192 N.J. at 540 (Albin, J., dissenting)(quoting State v. Blakney, 189 N.J. 88, 93 (2006).
To avoid the misuse of other-crime evidence, the Court in State v. Cofield established a four-prong test to determine the admissibility of prior bad act or other-crime evidence under N.J.R.E. 404(b), which is typically evaluated during a N.J.R.E. 104(a) hearing outside the presence of the jury. At such hearing the judge must apply the following factors:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338 (1992) (citation omitted).]
N.J.R.E. 404(b) evidence requires a "more searching inquiry" than is required by N.J.R.E. 403, as the latter rule only excludes evidence if its probative value is substantially outweighed by prejudice. Reddish, supra, 181 N.J. at 608. Furthermore, the party offering the prior bad act or other-crime evidence under N.J.R.E. 404(b) has the burden of proving the test is satisfied. Id. at 608-09. As a result, after viewing N.J.R.E. 403 in conjunction with N.J.R.E. 404(b), the Court concluded that Rule 404(b) is a "rule of exclusion rather than a rule of inclusion." Id. at 609 (citation omitted).
In this case, defendant points to numerous instances where unduly prejudicial evidence was improperly admitted. We begin by analyzing his claim that the evidence of the rental of the Lackland Storage unit was improper because it:
Exposed the jury to other-crime evidence through the inference that [defendant] stole Ressel's mail, notwithstanding that Ressel testified that he never knew the identity of the thief and that mail theft was not an indicted charge. Absent testimony connecting . . . the rental or contents of the Lackland Storage bin [to the two indicted offenses] this entire segment of testimony was unduly prejudicial. The [testimony suggested] that [defendant] used Ressel's name for more than uttering the $134.10 check to buy groceries. It implied [defendant] rented the bin to store ill-gotten proceeds obtained in multiple fraudulent transactions.
The State defends the admission of the storage bin testimony, arguing that the State "made no effort to link defendant to the storage facility or to show that he was the person who rented the storage facility in Ressel's name." Rather, the State maintains, the purpose of presenting this evidence was to "establish that Ressel had been the victim of identity theft and that his information had been stolen and used without his permission, as opposed to lost or misplaced by Ressel or his wife. . . . The notifications from Lackland Storage were evidence . . . that in fact, someone had used his information without authorization."
The State's argument actually concedes, albeit unintentionally, the very claim defendant makes. First, the evidence does not involve the single forged check that is the subject of the two-count indictment. Second, if, as the State suggests, the evidence of the storage bin was not intended to link defendant to rental of the bin, then the evidence has no relevance at all and should never have been admitted. This is because the clear implication from such evidence was that defendant was the person who rented the storage bin and had used Ressel's identity to do so, which suggests that defendant was guilty of a crime with which he was never charged, namely identity theft. Thus, the admission of this evidence implicates N.J.R.E. 404(b) concerns because of the suggestion that someone had used Ressel's name to rent the bin. Yet, the lengthy N.J.R.E. 104(a) hearing the judge conducted did not analyze the evidence relating to the storage bin under the four-prong Cofield test. Under those circumstances, we owe no deference to the judge's evidentiary rulings. Lykes, supra, 192 N.J. at 534. Additionally, defendant did object to the admission of the note from Lackland Storage and the judge overruled that objection.
We are satisfied that this evidence should have been excluded because it was irrelevant to the two charges for which defendant was on trial. Moreover, it suggested defendant committed the prior-bad-act of renting the bin to store ill-gotten proceeds obtained in multiple unrelated fraudulent transactions. Therefore, the evidence served no purpose other than the very purpose prohibited by N.J.R.E. 404(b), to establish a propensity to commit crimes.
Next, defendant asserts that Ressel's testimony describing other fraudulent checks drawn on his account was unduly prejudicial because defendant was charged only with the single Giant supermarket forgery and uttering. He argues that the admission of such evidence "contributed to the misleading 'impression' of a staggering amount of evidence of guilt." The State defends this evidence, arguing that Ressel's testimony referring to other fraudulent checks in his account was admitted merely to establish that Ressel notified the bank "that there were checks that were actually written and authorized by the Ressel's . . . [so that they could] be credited for the fraudulently written checks . . . ."
While we have no quarrel with the proposition that Ressel was entitled to discuss with bank officials which checks were legitimate and which were not, such discussion has no bearing on the admission of that evidence from the relevance perspective of N.J.R.E. 401. We emphasize, as we have done already in connection with the storage bin evidence, that defendant was on trial for the forgery and uttering of a single check.
Evidence that defendant may have in fact written other checks on the Ressels' account tarnishes him with evidence of alleged crimes for which he was not on trial, thereby necessitating the Cofield four-prong analysis. While the judge recognized that such evidence fell within the purview of N.J.R.E. 404(b), he never applied the Cofield criteria during the Rule 104(a) hearing to determine if such evidence was admissible in light of Cofield. Instead, the judge simply agreed to give the jury a limiting instruction. We agree with defendant that the admission of this evidence left the jury with the unmistakable impression that defendant had not only forged Ressel's name and passed one bad check, but had also engaged in numerous similar acts. If the State sought to introduce such evidence, the State should have indicted defendant accordingly or should have established during the hearing that the Cofield test was satisfied. Having failed to do so, the State should not have sought to admit this evidence, and the court should not have permitted the State to do so.
The damaging nature of the evidence of other fraudulent checks drawn on Ressel's account was exacerbated when LaPorte testified that he was able to reconstruct the shredded documents taken from the document shedder in the Germantown apartment. Through LaPorte, the State introduced another three fraudulent checks drawn on Ressel's closed account, but bearing an address in Austin, Texas: one payable to Hecht's department store and two others where the payee was not named by LaPorte.*fn3 Like the other evidence we have discussed above, these checks were not relevant, because they introduced evidence of other forgeries with which defendant was not charged and satisfied none of the N.J.R.E. 404(b) exceptions.
We recognize that the State was faced with the difficulty of proving that it was defendant who forged and uttered the $134.10 check made payable to Giant supermarket. The videotape was relevant and fair evidence to accomplish that purpose, as was the evidence that defendant possessed blank checkbook refills, laminating sheets, a paper edge trimmer, check stock paper and other computer equipment necessary to produce the fraudulent check that was presented at the Giant supermarket. What the State was not permitted to do, however, was introduce evidence of other instances of uttering forged checks with which defendant was not charged unless--after the careful balancing that Cofield requires--such evidence was probative of something other than criminal propensity. However, the judge never applied the Cofield criteria.
We also recognize, as the State argues, that the judge provided the limiting instruction that we have described. The instruction was given during LaPorte's testimony and again during the jury charge. However, the instruction was entirely inadequate. It merely restated, nearly verbatim, the exceptions contained within N.J.R.E. 404(b), without ever focusing the jury's attention on which of the many enumerated exceptions the jurors were expected to confine their attention.
In the absence of a focused instruction, the limiting instruction is deemed inadequate as a matter of law. State v. G.S., 145 N.J. 460, 472 (1996) (holding that the trial judge "must not only caution against a consideration of that evidence for improper purposes, it must through specific instruction direct and focus the jury's attention on the permissible purposes for which the evidence is to be considered"). See also Cofield, supra, 127 N.J. at 341 (holding that a N.J.R.E. 404(b) limiting instruction "'should be formulated carefully to explain precisely the permitted and the prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'") (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
Consequently, not only did the judge erroneously permit the State to introduce evidence of numerous other checks fraudulently written on Ressel's account in violation of the four-prong test established in Cofield, but the limiting instruction, assuming the evidence had even been admissible, was woefully inadequate. Although there was no objection,*fn4 the absence of an effective limiting instruction was "clearly capable of producing an unjust result." R. 2:10-2. The capacity for prejudice was especially strong in light of the large quantity of N.J.R.E. 404(b) evidence that was admitted.
Next, defendant maintains that the Yahoo driving directions from the Giant food store in Mount Laurel to Giant food stores in Brooklyn and Bensalem, Pennsylvania likewise violate the N.J.R.E. 404(b) prohibition against the admission of other-crimes and prior-bad-acts evidence to demonstrate propensity to commit a crime. The State defends this evidence, arguing that the driving directions to the Giant stores in Bensalem and Brooklyn "did not infer that defendant had been involved in other crimes involving identity theft. Rather, the information repeatedly tied defendant back to fraudulent activities involving Ressel, the victim in this case. The [driving directions] were . . . relevant in attempting to establish the defendant stole Ressel's identity, and were properly admitted by the court." Thus, like the storage bin evidence, the State justifies the driving directions to the other Giant supermarkets as establishing that defendant stole Ressel's identity. As we have already observed, defendant was not charged with that crime. The driving directions to Giant supermarkets in Bensalem and Brooklyn had no bearing on the forgery or uttering of the $134.10 check, the two crimes for which defendant was on trial. Worse, this evidence strongly suggested defendant committed other crimes with which he was not charged. Such evidence satisfied no purported N.J.R.E. 404(b) exception. It served no purpose other than to establish criminal propensity, a purpose prohibited by N.J.R.E. 404(b). We therefore agree with defendant's contention that such evidence was clearly capable of producing an unjust result. R. 2:10-2.
Even worse was the testimony from Detective Hill describing the driver's license with defendant's photograph and Ressel's name and address that was found in the Germantown apartment. Like much of the other evidence we have described, this evidence was extremely damaging because it suggested that in addition to forging and uttering one check, defendant had gone much further and had stolen Ressel's identity by manufacturing a driver's license with Ressel's name and defendant's face. In the same vein was Detective Hill's testimony that he was certain defendant had victimized Duncan in California by assuming his identity.
Thus, by the time the State finished presenting its case, it had charged defendant not only with the two counts for which defendant was indicted, but the State had suggested that defendant was guilty of crimes in Maryland and California as well, that defendant had not only forged and uttered the one check but had committed the crimes of identity theft against not only Ressel but also against Duncan.
This onslaught of inflammatory, unduly prejudicial and irrelevant evidence denied defendant a fair trial. Even in isolation, it is likely that any one of these errors standing alone might have warranted the reversal of defendant's conviction. However, in the aggregate, the errors take on a cumulative weight so overwhelming as to require reversal even if the errors, standing alone, might not have warranted such a result. State v. Jenewicz, 193 N.J. 440, 473-74 (2008).
We are mindful that some of the error introduced in the trial came at the hands of defense counsel. However, all of the evidence we have pointed to as requiring reversal was introduced at the behest of the State, not of defendant. Therefore, the State should bear the only fair consequence, which is reversal of defendant's conviction on these two counts. In this case, "the errors' cumulative impact prejudiced the fairness of defendant's trial and, therefore, casts doubt on the propriety of the jury verdict that was the product of that trial." Id. at 474.
In light of our conclusion that defendant's conviction must be reversed because of the unduly prejudicial N.J.R.E. 404(b) evidence that was admitted, we need not address in detail the arguments defendant raises in Points III, IV and V.
We do, however, have grave reservations about other unduly prejudicial evidence that was admitted, as argued in Points III, IV and V. Hill's testimony that "there was [no] doubt in his mind that [defendant] was the individual who went to the Giant supermarket on May 14, 2005 and passed that check," coming as it did from a seasoned detective, had the capacity to invade the province of the jury. His testimony that defendant used an alias, when elicited on cross-examination, should have prompted a sua sponte instruction to the jury to disregard that evidence. Finally, the judge should not have permitted the State to introduce a photograph showing law enforcement personnel from various agencies in the Germantown apartment during the search.
In the absence of a limiting or curative instruction, the jury likely concluded that defendant was the target of criminal investigations by federal and Maryland authorities, which was an improper and inflammatory use of N.J.R.E. 404(b) evidence. Evidence that the "career criminal section" of the Montgomery County Police was involved only compounded the prejudice. We agree with defendant's contention that "[t]he obvious implication was that [defendant's] criminal activity was extensive and that his crimes went well beyond the $134.10 check in the New Jersey case." Such evidence should be excluded upon retrial.
We need not address the sentencing argument defendant raises in Point VII except to note, as the State concedes, that the trial court erred by imposing more than one discretionary extended term sentence. N.J.S.A. 2C:44-5(a) provides that "not more than one sentence for an extended term shall be imposed."
Reversed and remanded for a new trial.