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State v. Henry

December 11, 2009


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-06-1050.

Per curiam.


Argued November 9, 2009

Before Judges Yannotti and Chambers.

In this interlocutory appeal, the State challenges a pretrial evidentiary ruling made by the trial court. Defendant Franklin G. Henry was indicted for second-degree eluding, N.J.S.A. 2C:29-2(b). The offense occurred when defendant was pursued by police for the nonindictable offense of shoplifting. Upon application of defendant, the trial court severed the shoplifting charge from the eluding charge and directed that the State could not present evidence of the shoplifting. The court would allow the State to present evidence that the police were pursuing the vehicle based on information received from the store.

We reverse, concluding that the information about the shoplifting was relevant evidence to show the defendant's motive in eluding the police, and was not inadmissible under N.J.R.E. 404(b).


On April 7, 2009, the North Bergen Police Department received a call from the security guard at National Wholesale Liquidators who believed that two men had just driven out of the store parking lot after shoplifting. While the security guard initially pursued the two, the police took up the chase. Once the vehicle stopped, defendant was identified as the driver of the vehicle. He was in possession of a knife. Three bottles of champagne from National Wholesale Liquidators were found in the vehicle.

Defendant was indicted for possession of a weapon, N.J.S.A. 2C:39-5(d) (fourth-degree), and eluding, N.J.S.A. 2C:29-2(b) (second-degree). The store filed a complaint against him for shoplifting, a disorderly persons offense.

Defendant moved to sever the shoplifting charge from the indictable offenses and to exclude evidence of the shoplifting pursuant to N.J.R.E. 104(a). The State indicated that it intended to offer the testimony of the cashier and security guard at the National Wholesale Liquidators Liquor Department. The cashier would testify that on the day in question, she saw a man adjust his jacket as though something were falling as he was leaving the store through the entrance. This suggested to her, based on her training and experience, that he had shoplifted. She shared her suspicion with the security guard. The security guard would testify that he also had observed the man adjust his jacket and walk out of the store with another man. He called the police, got in his vehicle, and followed the men as they drove out of the store parking lot. The police picked up the chase.

The trial court granted the motion and barred evidence relating to the shoplifting, including the testimony of the cashier and the introduction into evidence of the champagne bottles. The trial court recognized the relevancy of the shoplifting evidence noting that the shoplifting is "inextricably intertwined with the eluding because the eluding comes exactly right after the shoplifting and any reasonable person can say they eluded because of the shoplifting." However, it excluded the evidence based on a N.J.R.E. 403 analysis, finding that its probative value was substantially outweighed by its prejudicial effect. The trial court did indicate that the security guard would be allowed to testify that based on information he had received from the cashier, he asked the police to stop the car. This was intended to alleviate any impression that the police had acted arbitrarily in giving chase. The trial court also granted the motion to sever, and that decision has not been appealed.

We granted the State leave to appeal this evidentiary ruling and stayed the trial.


We note that the trial court based its evidentiary ruling on a Rule 403 analysis, which allows relevant evidence to be "excluded if its probative value is substantially outweighed by the risk" of "undue prejudice," among other factors. Our review, however, indicates that Rule 404(b), governing the admission into evidence of other crimes, wrongs or acts, is more directly applicable here. Since the trial court did not apply the correct standard, we will accord its decision no deference. See State v. Reddish, 181 N.J. 553, 609 (2004) (stating that when a trial court admits ...

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