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State v. Young

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CRAIG E. YOUNG, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-07-0509.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 6, 2010

Before Judges Cuff, Payne and Waugh.

Defendant, Craig Young, appeals from his conviction for third-degree drug distribution, N.J.S.A. 2C:35-5a(1) and -5b(3), and from his extended-term sentence of eight years with four years of parole ineligibility. On appeal, he raises the following issues for our consideration:

POINT I.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL, OR IN THE ALTERNATIVE A CONTINUANCE, BASED ON THE STATE'S REVELATION OF THE PREVIOUSLY UNDISCLOSED IDENTITY OF THE CONFIDENTIAL INFORMANT IN HIS OPENING ARGUMENT, THEREBY VIOLATING THE DISCOVERY RULES AND RESULTING IN UNFAIR SURPRISE AND MANIFEST INJUSTICE.

POINT II.

THE TRIAL COURT ERRED BY PERMITTING LAW ENFORCEMENT OFFICERS TO TESTIFY CONCERNING INCULPATORY HEARSAY STATEMENTS MADE BY A CONFIDENTIAL INFORMANT WHO DID NOT TESTIFY AT TRIAL. (NOT RAISED BELOW.)

POINT III.

THE ADMITTANCE INTO EVIDENCE OF DEFENDANT'S REMOTE CRIMINAL CONVICTIONS CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (PARTIALLY RAISED BELOW.)

POINT IV.

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO IMPROPERLY INTRODUCE PRIOR BAD ACTS OF THE DEFENDANT INTO EVIDENCE, THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)

POINT V.

PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)

A. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT HAD A BURDEN OF PROOF VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)

B. THE PROSECUTOR'S IMPROPER SUGGESTION TO THE JURY THAT THEIR OATHS REQUIRED THEM TO RETURN A GUILTY VERDICT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)

C. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT WAS GUILTY BASED ON HIS PRIOR CONVICTIONS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)

POINT VI.

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)

POINT VII.

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS. (NOT RAISED BELOW.)

We reverse.

I.

The record establishes that, on February 21, 2007, a confidential informant contacted Detective Kevin McLaughlin of the Cape May County Prosecutor's Office and informed him that an individual named Craig was planning to sell drugs in the county. The informant inquired whether the detective would be available to meet Craig, and when the detective agreed, arrangements were made for Detective McLaughlin and the informant to meet that night at 3124 U.S. Highway 9 South, Apartment 9, in Rio Grande at 7:45 p.m. The informant stated that Craig should be on his way over at that time. The informant and Detective McLaughlin met as planned, and within approximately five minutes, Craig arrived. After some preliminary conversation, Detective McLaughlin sought to purchase one-eighth of an ounce of cocaine, colloquially known as an "eight-ball." Craig agreed to the sale, and he sold the drugs for $150. After a short further conversation, Craig left the apartment and was observed by another officer leaving the building and approaching the red Ford Explorer in which he had arrived. A subsequent vehicle look-up disclosed a motor vehicle violation by a Craig Young while driving the Ford. Young's photograph was therefore included in a photo array. Two days after the buy, after an initial hesitation, Detective McLaughlin identified defendant in that array as Craig, the seller of the drugs.

Craig was not arrested at the time of the February sale, since the officers hoped to arrange further purchases from him. However, arrangements could not be made and, as a result, Craig was eventually arrested on July 15, 2007 and charged with the single sale.

At trial, defendant testified that, on the night of the sale, he went to the apartment of R.B., a person he had known for twenty years, to collect $400 that R.B. owed to him, but he was only paid $80. While at the apartment, defendant observed another individual sticking his head out of a bedroom door, but had no contact with the individual. Defendant denied selling drugs after June 2006, but admitted to a sanitized criminal history extending back to 1991.

II.

The identity of the confidential informant was not disclosed by the State prior to trial, and defense counsel did not move for disclosure, believing that he lacked grounds for doing so. However, during the prosecutor's opening, the prosecutor made statements that established that the confidential informant was R.B. The prosecutor described the events leading up to the drug sale, including Detective McLaughlin's introduction of himself to the drug dealer as Sean, and then he stated:

What the defendant didn't know is that the man he sold drugs to, the crack cocaine, his name wasn't Sean. His name is Kevin, Detective Kevin McLaughlin. Detective Kevin McLaughlin works for the Cape May County Prosecutor's Office. He's an undercover officer with the Narcotics Division, which is called the Narcotics Task Force, and the Task Force's really sole job is to infiltrate drug dealers, get into drug [deals], buy drugs from drug dealers, build a case against them, and ultimately bring them to justice.

What the defendant also didn't know was that that apartment at 3124, apartment #9, was the apartment of what's called a confidential informant. Essentially a confidential informant is a non-law-enforcement officer, they're civilians, and their job is to assist law enforcement in investigation in cases with drug dealers.

And one of the ways they do that is they are a catalyst or they introduce the undercover to a target, to a drug dealer.

At the conclusion of the prosecutor's opening statement, defense counsel objected, claiming that no where in the discovery given to him was it indicated that apartment 9 was the apartment of a long-term confidential informant. Counsel stated further that he had thought that R.B. was the apartment's occupant, and that R.B. was on his witness list. After a further side-bar discussion, much of which cannot be discerned from the record, the judge stated that he would preserve any rights defendant might have, and that defense counsel should proceed with his opening. The issue raised by defense counsel would then be discussed further at the first break.

In his opening, counsel, in essence, offered the defense presented by defendant at trial, stating:

Now I'm going to tell you my client was there. He - There was a man named [R.B.] who, as far as I know, is the person whose apartment this was. He owed my client money. My client was there to collect it, and that's what it was. He got - he didn't get all of it for that matter, and he left.

There was no dealings with any third person as far as my client is concerned, and [R.B.] will hopefully be here to testify and say exactly that.

When the subject was again raised at the first break, defense counsel stated that he had obtained a statement from R.B. that exonerated defendant, which he had given to the prosecutor in discovery, without comment from the prosecutor. If counsel had known that R.B. was the confidential informant, he also would have known that the statement was untrue and would not have relied on it in preparing his defense of the case.

According to defense counsel, the police report gave no indication that the confidential informant was in fact a resident of apartment 9. Rather, counsel believed that the confidential informant and the undercover officer had met outside the apartment and, as was usual in such undercover deals, they then entered, the informant introduced the officer to the seller, and the sale was made. If he had understood the apartment to have been the residence of the confidential informant, counsel would have instructed his investigator to determine from R.B. whether anyone other than R.B. resided there. If the answer were negative, counsel would then have known that R.B.'s exoneration should be taken with "a bigger grain of salt."

Defense counsel requested a mistrial. The request was denied. The judge acknowledged that the prosecutor's opening provided the "first formal linkage" between R.B. and the confidential informant. Nonetheless, the judge found that "the prospect of that linkage has been apparent throughout; and I'm not able to find surprise or, or prejudice to the extent that that prospect was readily discerned from the discovery that was provided." Finding no evidence of manifest injustice, the judge ordered that the trial continue, giving defense counsel ten minutes to arrange for an investigator to locate and re-interview R.B.

The police report setting forth Detective McLaughlin's version of the events has not been included in the record on appeal. As a result, we are unable to determine whether, as the judge concluded, defense counsel should have known that R.B. was the confidential informant and that his statement exonerating defendant was suspect. However, we find it reasonable to conclude that (1) the prosecutor was aware of R.B.'s identity as the confidential informant; (2) the prosecutor knew that defense counsel was unaware of R.B.'s identity as the informant, or he would not have named him as a witness or indicated his intent to elicit testimony similar to that contained in R.B.'s statement; (3) the prosecutor did not disclose R.B.'s role to defense counsel after receiving R.B.'s statement in discovery; but (4) the prosecutor made that information known at the very first opportunity at trial, at a time when counsel's defense strategy, as previously revealed to the prosecutor, was essentially set. The issue thus becomes whether, given these facts, fundamental fairness required pretrial disclosure of the identity of the confidential informant by the prosecutor, or either declaration of a mistrial or a continuation to permit a further interview of R.B. and development of a different defense strategy.

N.J.R.E. 516 provides:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

Because the privilege precluding disclosure of the identity of the informer suppresses the truth, "it must be construed to achieve, not thwart, a just result." Grodjesk v. Faghani, 104 N.J. 89, 96 (1986). As the Court stated in Grodjesk:

In general, the purpose of the privilege is to further the public interest in effective law enforcement. By preserving the anonymity of informers, the privilege encourages citizens to perform their civic duty to communicate knowledge of wrongdoing to law enforcement officials. Although designated the informer's privilege, the privilege is not that of the informer, but of government "to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Thus, the purpose of the privilege is to protect the public interest in a continuous flow of information to law enforcement officials. [Id. at 97 (citations omitted).]

Whether fundamental fairness compels disclosure of an informer's identity requires use of the balancing test established by the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957) and adopted in New Jersey in cases such as State v. Milligan, 71 N.J. 373, 384 (1976) and Cashen v. Spann, 66 N.J. 541, 553, cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed. 2d 46 (1975). As stated by the Roviaro Court:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

[Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed. 2d at 646.]

Disclosure of the identity of an informer is often denied in a criminal matter, particularly when the informant has not directly participated in the criminal act underlying the prosecution, because "free and unwarranted access to the identity of informers will effectively eliminate the informer's privilege." Milligan, supra, 71 N.J. at 392. "Therefore," according to the Milligan Court, "while we emphasize that courts must remain sensitive to the legitimate needs of defendants and to fundamental principles of fairness, they should not honor frivolous demands for information on unsubstantiated allegations of need. This is especially true where such demands would jeopardize the protection afforded police informers. Something more than speculation should be required of defendant before the court overrules an informer's privilege of nondisclosure." Id. at 393 (footnote omitted).

Nonetheless, the Court has recognized that "the need for a truthful verdict outweighs society's need for the informer privilege." State v. Burnett, 42 N.J. 377, 386 (1964). In this regard, the Court has also recognized that the limitation on the privilege arising when disclosure "is essential to a fair determination of a cause . . . requires the disclosure of the informer's identity if it is necessary to avoid the risk of false testimony." Grodjesk, supra, 104 N.J. at 98-99 (citing State v. Gilmore, 665 S.W.2d 25, 29 (Mo. Ct. App. 1984); 8 J. Wigmore, Evidence § 2374 at 768 (J. McNaughton rev. 1961)).

The present case is unusual, in that the State volunteered the name of the confidential informant at trial, thereby suggesting that it no longer sought to protect a continuous flow of information from R.B. - a person that Detective McLaughlin did not yet regard to be a reliable informant, or a public-spirited one, but instead, a person who merely sought to "clean up his resume." If, as it appears, the State did not seek to protect R.B.'s identity as an informant, then it is difficult to justify its failure to name R.B. as its confidential informant when provided with his exculpatory statement by defense counsel in discovery. For in that circumstance, Roviaro's balance of "the public interest in protecting the flow of information against the individual's right to prepare his defense," 353 U.S. at 62, 77 S.Ct. at 629, 1 L.Ed. 2d at 646, would have tipped, decidedly, in defendant's favor. Indeed, the State's silence at that time was contrary to "the need for a truthful verdict" Burnett, supra, 42 N.J. at 386, and increased the risk of false testimony at trial. Grodjesk, supra, 104 N.J. at 98. Indeed, the State's timing of its disclosure appears to have been purposefully calculated to result in a proceeding that was fundamentally unfair to the defendant.*fn1 In these circumstances, either a mistrial or a substantial continuance was warranted.

III.

Defendant argues next that his constitutional right to confrontation was violated when police witnesses were permitted to recount out-of-court statements of confidential informant R.B. that incriminated defendant. See State v. Branch, 182 N.J. 338, 348-53 (2005); State v. Irving, 114 N.J. 427, 444-48 (1989); State v. Bankston, 63 N.J. 263, 268-71 (1973).

The record reflects the following testimony on direct examination of Detective McLaughlin by the prosecutor:

Q: Did you become involved with a drug investigation on February 21, 2007?

A: Yes.

Q: And how did that come about?

A: I had been talking with a confidential informant, and he called me that day and told me that there was somebody that he knew as Craig that was going to come down and start dealing drugs in Cape May County. He asked me if I would be available to try to meet with Craig, and I told him I would be.

Q: You use the term confidential informant. Can you take a minute and explain in a little more detail exactly what a confidential informant is and the role they play in the Narcotics Task Force.

A: A confidential informant is somebody who is out on the street dealing with some of the people that I wouldn't get a chance to meet on my own. They may know people that are dealing drugs. They may have their phone number, and they may help me get introduced to that person where I otherwise wouldn't have been able to. They'll also do controlled buys, which means they'll go into somebody's house and come back with drugs that'll help us determine that they are, in fact, drug dealers.

Q: Are confidential informants law enforcement officers?

A: No.

Q: After you spoke with the C.I. with regard to jump starting an investigation with an individual named Craig, what happened next?

A: Well, I agreed to meet with the C.I. at about 7:45 that evening. He told me that Craig should be on his way over around that time.

Q: Okay. And where did you meet the confidential informant?

A: At 3124 U.S. Highway 9 South in Rio Grande.

Q: Is there a specific apartment number?

A: Apartment 9.

Q: While you were inside the apartment with the confidential informant did anybody else come to the apartment?

A: Yes, sir.

Q: About what time?

A: It was about five minutes after I got in there, so approximately 7:50 p.m. . . . .

He introduced himself to me as Craig . . . .

On cross-examination, Detective McLaughlin disclosed that he had asked the informant what he thought McLaughlin would be able to purchase, and the informant "indicated that it could be an eight ball."

Additionally, in the direct examination of Detective Paul Skill, the prosecutor elicited testimony that: "We received information from a confidential informant that stated that a person would be coming to a location to sell drugs;" "the location for the sale was 3124 U.S. Route 9 in the Rio Grande section of Middle Township;" and the drugs would be sold from "Apartment number 9." Further, Skill described the plan: "Detective McLaughlin was going to go up to the apartment, meet with the confidential informant and wait for the person to arrive so that he could purchase narcotics, an eight ball of cocaine."

The confidential informant, R.B., did not testify at defendant's trial.

As the Court stated in Bankston:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him. [Bankston, supra, 63 N.J. at 268-69 (citations omitted).]

Further, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271.

In the present case, as in Bankston, no objection was made at trial to the testimony that we have set forth and thus the error must be judged on a plain error standard. "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 273 (citing State v. Macon, 57 N.J. 325, 335-36 (1971)). Our review of the record in the present matter satisfies us that a reasonable possibility exists "'that the evidence complained of might have contributed to the conviction.'" Bankston, supra, 63 N.J. at 273 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed. 2d 171, 173 (1963)). We reject any claim that the admission of the hearsay testimony constituted harmless error. A new trial is thus warranted.

IV.

Because defendant indicated that he would testify on his own behalf at trial and because he had a criminal record, a Sands-Brunson*fn2 hearing was conducted to determine which of defendant's previous convictions could be disclosed to the jury to impeach defendant's credibility and whether those convictions should be sanitized. The record discloses that on July 19, 1991, defendant received a sentence of two years of probation for third-degree unlawful possession of a weapon; on May 29, 1992, while on probation, defendant received a five-year prison sentence for violation of probation, two third-degree drug charges, and a fourth-degree charge of resisting arrest; on May 19, 1995 he was sentenced to four years in prison with fifteen months of parole ineligibility for a third-degree drug distribution charge; on July 1, 1998, he was sentenced to three years in prison on a third-degree drug charge; and on January 18, 2002, he was sentenced to one to three years in New York prison on charges of drug possession with the intent to sell. The judge permitted disclosure of all convictions, but sanitized each, permitting disclosure only of the date and grade of the offense. The judge also provided the jury with a proper instruction as to the limited use they could make of this evidence.

On appeal, defendant argues that the court's determination to permit reference to his three oldest convictions, occurring between thirteen and seventeen years prior to trial, was improper. We address this issue, which may recur at retrial, and reject defendant's position. Although the crimes to which defendant refers are remote in time, they constitute a part of a continuing pattern of criminal conduct, virtually all of a drug-related nature, marked by almost continuous periods of incarceration up to approximately 2003. Thereafter, defendant admitted a course of continuing criminal conduct until 2006. In these circumstances, we find no abuse of discretion by the trial judge. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd in part; remanded in part, 107 N.J. 222 (1987).

As the Court stated in Sands,

The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. . . . The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Sands, supra, 76 N.J. at 144-45.]

V.

At trial, defendant admitted on direct examination to being a former drug dealer, but he testified that in 2005 he determined "to clean up his act," and that he had not sold drugs since June 2006. He adamantly denied selling drugs to Detective McLaughlin or to anyone else on February 21. Defendant was not asked any questions regarding eight-balls.

On cross-examination, the State intensively questioned defendant on his prior drug dealing and as to whether he would ever have sold an "eight-ball" the 1/8-ounce quantity allegedly sold to McLaughlin. The following cross-examination occurred:

Q: Okay. You said - I think it was kind of word for word, "I haven't sold drugs since 2006." Doesn't that imply you sold them in 2006?

A: June. As of June.

Q: Okay. So June of 2006 you sold drugs?

A: Yes, I have.

Q: Who did you sell them to?

A: People that I know.

Q: What people?

A: People I know.

Q: Friends?

A: Not friends. Associates.

Q: Acquaintances?

A: Acquaintances, if you want to say that.

Q: In June of 2006 when you were selling drugs how did these acquaintances get in touch with you to buy drugs from you?

A: I would go by their house, or I would meet mainly at Sportsman's and they would -

Q: So you dealt drugs from the Sportsman Tavern?

A: Yes, I have.

Q: What did you sell out of Sportsman Tavern as late as June 2006?

A: Excuse me?

Q: As late as June 2006 what drugs did you sell out of the Sportsman Tavern?

A: Cocaine.

Q: A lot of cocaine?

A: Yes, sometimes.

Q: [R]ock cocaine?

A: Sometimes.

Q: Anything else?

A: No.

Q: Not heroin?

A: No.

Q: Marijuana?

A: No.

Q: So as of 2006 you were a cocaine dealer?

A: As of 2006, yes.

Q: Okay. When you were selling your cocaine in the Sportsman Tavern, people just come up to you and buy - and offer to give you money for the drugs?

A: I only dealt with people I knew.

Q: Well, that's what I'm saying. So people you knew came up to you.

A: Yes, sir.

Q: And what kind of quantity would you sell?

A: Twenties, fifties.

Q: Did you ever hear the term eight ball?

A: Yes sir.

At this point defense counsel objected to the prosecutor "wallowing" in defendant's prior drug-selling history. However, the judge permitted the questioning to continue. Thereafter, defendant testified that he did not sell eight-balls because there was no profit in it. "The cost of an eight ball, as you all heard Mr. McLaughlin say, is $150. That's what I pay. If I was to sell it for that same price, then there's no profit." After a considerable additional colloquy on the lack of profit derived from selling eight-balls, defense counsel raised a further objection to this testimony on grounds of relevance. Although his objection was sustained, the jury was not instructed to ignore the testimony or told for what purposes it could be considered.

N.J.R.E. 404(b) provides:

Except as otherwise provided by Rule 608(b) 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. Such 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.

As the Court recognized in State v. Cofield, "[t]he underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is 'a "bad" person in general.'" 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). As a consequence, even if the other-crime evidence is relevant to prove some legitimate trial issue, it must still be excluded unless its probative value outweighs its prejudicial impact. Ibid. Cofield establishes that, to be admissible,

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 (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).]

Whether Cofield's test has been met is generally determined in a hearing conducted pursuant to N.J.R.E. 104.

In the present matter, defendant admitted to a history of prior drug sales, while claiming that he had ceased distribution in June 2006, eight months before the transaction at issue and almost two years prior to trial. Arguably, defendant's position opened the door to cross-examination as to whether he had, in fact, reformed and to introduction of impeaching evidence of drug sales occurring after June 2006, even though such evidence consisted of prior bad acts, ordinarily precluded by Rule 404(b). However, that was not the focus of the State's inquiry. The State offered no admissible proof,*fn3 other than the evidence surrounding the sale on February 21, 2007, to contradict defendant position that he had ceased his illegal conduct. Its extended cross-examination focused instead solely upon the specifics of defendant's prior illegal drug sales, occurring under circumstances that differed significantly from the sale for which defendant was now being prosecuted. The testimony elicited by the State thus bore no relevance to defendant's guilt.

As the Cofield Court recognized, "'it will be the exceptional, and not the usual, case where the evidence of other bad acts is substantially relevant for reasons other than proof of criminal character.'" 127 N.J. at 337 (quoting Harris v. State, 597 A.2d 956, 961 (Md. 1991)). And "mere proof that an accused has sold narcotics on another occasion, especially when it is a distantly-related occasion, has no special relevance." Ibid. (citing Harris, supra, 597 A.2d at 963-64). Indeed, the State does not contend on appeal that relevance was established, arguing only that defendant opened the door by admitting to a prior history of drug-related crime. Further, the prejudicial effect of such propensity evidence clearly outweighed any probative value that it might be found to have had.

But here, there was no N.J.R.E. 104 hearing, no evaluation of the proposed testimony in light of Cofield occurred, no proffer was made by the State as to the basis for the admissibility of the evidence of prior crimes pursuant to N.J.R.E. 404(b), and no limiting instruction was given to the jury with respect to its consideration of that evidence. We find these defects also to be sufficient to warrant a new trial.

VI.

In addition to the foregoing, defendant claims error in statements made by the prosecutor in his closing argument, including statements that defendant claims improperly shifted the burden of proof to him, unduly focused on his criminal history as a basis for conviction, and constituted a call to arms. While we do not find any of the comments, in an of themselves, to be sufficient to warrant a new trial, we caution the prosecutor, upon retrial, to avoid the expressions of which defendant complains.

In light of our disposition of this matter, we decline to address defendant's sentencing arguments.

Reversed.


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