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State of New Jersey v. Gino Mccoy A/K/A Geno Mccoy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 18, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GINO MCCOY A/K/A GENO MCCOY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0596.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2010

Before Judge Graves and Messano.

Defendant Gino McCoy, a/k/a Geno McCoy, appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).*fn1 After merging the weapons offenses into the robbery conviction, the judge sentenced defendant to a twenty-year term of imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a concurrent ten-year prison term with an 85% period of parole ineligibility pursuant to NERA on the aggravated assault conviction.

Defendant raises the following issues on appeal:

POINT I

MR. MCCOY WAS PREJUDICED BY VAGUE AND IRRELEVANT EVIDENCE THAT HE COMMITTED OTHER BAD ACTS, AND THE COURT PROVIDED AN INADEQUATE JURY INSTRUCTION, THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).

POINT II

IN IMPOSING A 20-YEAR TERM OF IMPRISONMENT, WITH 85% PAROLE INELIGIBILITY, THE COURT CREATED A MANIFEST INJUSTICE. THE SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.

In a separately-filed pro se brief, defendant raises the following points:

POINT I

DISMISSAL OF INDICTMENT. THERE ARE NO ELEMENTS TO THE STATU[T]E OF THE CHARGES AND JOIN[D]ER OF SEPARATE OFFENSES IN THE INDICTMENT.

POINT II

TRIAL JUDGE ERROR NOT TO INCLUDE A LESSER INCLUDED OFFENSE ON VERDICT SHEET AFTER GIVING INSTRUCTION TO CHARGE THE JURY.

POINT III

INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

MR. MCCOY['S] SENTENCE WAS EXCESSIVE: WHERE A PLEA AGREEMENT WAS OFFER[ED] TO DEFENDANT OF 15 YRS. BUT WAS GIVEN 20 YRS. AFTER CONVICTION, PLUS 5 YRS. PAROLE SUPERVISION MADE IT AN ENHANCE[D] SENTENCE, AND NERA 85% WAS NOT MENTIONED IN INDICTMENT.

POINT V

DISPARITY IN SENTENCE WAS UNJUSTIFIABLE AND SHOULD BE VACATED TO PROMOTE FAIRNESS AND CONFIDENCE IN EVENHANDED JUSTICE OF SYSTEM.

We have considered these arguments in light of the record and applicable legal standards. We reverse.

I.

On October 1, 2004, at approximately 5:55 a.m., Joel Wolff, the owner of Wolff Brothers Dry Cleaners, Inc., in East Orange, arrived at his place of business. The premises included a small laundromat that was accessible by a separate door, in addition to the dry cleaning business that occupied the remainder. Wolff noticed two people standing at a nearby green, two-door car without a back window. Shortly thereafter, Wolff heard someone banging on the back door of the business. He saw a familiar-looking woman who was asking for change. Wolff motioned for her to come to the front entrance of the laundromat.

As Wolff gave the woman change, a person wearing a skeleton mask came through the entrance toward Wolff and struck him in the forehead with the blunt end of a hatchet, rendering Wolff unconscious. When he awoke, Wolff was behind the store counter with his assailant straddling him. Wolff struggled with the assailant who then punched Wolff above his right eye and again struck him with the hatchet.

The assailant secured a kitchen knife from the woman. As Wolff and the man struggled over the knife, the assailant ordered the woman to go to the store's safe and directed her toward it. At this point, Wolff realized that he "had heard . . . th[e] man before, th[e] inflection in the voice." When Wolff told the pair that he couldn't remember the combination to the safe, the woman took his wallet and both intruders ran away. Wolff called the police. When they arrived, Wolff provided them with a description of his assailants and a list of former employees that included defendant's name. Wolff was taken to the hospital and treated for his injuries.

About two weeks later, Wolff read an article in a local newspaper regarding the arrest in Metuchen of defendant and his then girlfriend, Mona Hill.*fn2 Wolff called Detective Pat Pasteur of the East Orange Police Department because the vehicle described in the article as being used by defendant and Hill matched that of the vehicle Wolff saw on the morning of the robbery. Wolff, however, could not identify defendant as one of the robbers.

Pasteur contacted Hill who came to police headquarters on November 23, 2004, and gave a statement regarding the robbery. Pasteur testified that defendant was then "picked up on some outstanding warrants" and interviewed at police headquarters. After waiving his Miranda*fn3 rights and executing a waiver form, defendant gave Pasteur a written statement in which he admitted his involvement in the robbery.

Hill testified as a witness for the State. She confirmed that she and defendant robbed Wolff after driving to the scene in a 1992 green Ford Probe with a broken rear window. On cross-examination, Hill admitted that she was never charged in connection with the robbery and that she was on probation for being convicted of possession of a controlled dangerous substance.

Defendant testified and denied participating in the robbery. He admitted being with Hill on that day, but claimed that he picked her up around 9:00 a.m. Defendant also claimed that he underwent hernia surgery in mid-September and was incapable of "vigorous physical fighting" on the day of the robbery. Defendant testified that although he voluntarily signed the Miranda rights form, he did not provide the answers contained in the written statement. Instead, he signed the individual pages of the statement without reading them because Pasteur told him that he would be released if he did.

The record reflects that the jury reached its verdict in less than two hours.

II.

(a)

Defendant's first point on appeal deals with testimony provided by Hill, Pasteur and Wolff, as well as questions posed by the prosecutor during cross-examination of defendant. We discuss the testimony in the sequence of its admission at trial.

Hill was asked on cross-examination if defendant had broken off their relationship "because of [her] drug activity[.]" She denied that was the case.

Pasteur testified that Wolff provided him with a description of his assailant and a list of former employees that included defendant's name. The following exchange then took place between the prosecutor and Pasteur:

Q. Did Mr. Wolff tell you the names of the people who worked at his establishment?

A. Yes, he did.

Q. What were those names?

A. One in particular was a Mr. Gino McCoy.

Q. And why was that of interest?

A. Given the build . . . of [defendant], his voice, and his past dealings with him, [Wolff] felt that he might have been a suspect.

Q. . . . What description did Mr. Wolff give of the person who committed this robbery?

A. Black male, slim build, approximately 150 to 160 pounds, a former employee of his that he said . . . discontinued his employment because --Defendant's objection interrupting the answer was summarily overruled by the judge. Pasteur continued,

A. -- employee that was discontinued from his place of employment because of problems dealing with drugs and always asking for money.

Defense counsel asked for a mistrial, which the judge denied; counsel's request for a sidebar conference was also denied. The prosecutor continued his questioning:

Q. Now, after you learned that [defendant] had been recently discharged from his employment, what did you do next?

A. I then conducted some criminal histories on him, trying to find out what his background was, and that's around the same time I learned [defendant] and a young lady were arrested in Metuchen.

Q. Excuse me. How did you learn that they were arrested in Metuchen?

A. An article . . . from Middlesex County . . . .

Q. Do you recall how that article came to your attention?

A. Yes. It was provided to me by Mr.

Wolff.

During a recess, defense counsel renewed his motion for a mistrial. He argued that Pasteur's testimony regarding Wolff's description of defendant's drug problem was "gratuitous and prejudicial hearsay." The prosecutor countered that Pasteur was "simply indicating how and why . . . his focus was on [defendant]." The judge concluded that Pasteur's testimony was proper, reasoning "if part of the description was a thin[-]build man who was on drugs, [Pasteur was] allowed to say that. . . .

[I]f [defendant] was fired for drug use or being on drugs, that is admissible in this trial." The judge further concluded that defendant "opened this door when [he] asked . . . Hill whether or not she was . . . a drug user."

Pasteur read the statement he took from defendant to the jury after it had been redacted to remove questions regarding other crimes in which defendant was an apparent suspect.*fn4 During cross-examination, defense counsel implied that all the information contained in the statement was already known to Pasteur through his interviews of Wolff and Hill. On re-direct, over defendant's objection, the prosecutor was permitted to ask Pasteur whether any information contained in the statement was unknown to the detective before he interviewed defendant. The judge, however, forbade any reference to questions and answers in the written statement that involved other crimes. Pasteur acknowledged that defendant "gave [him] . . . information that [he] did not know beforehand."

Wolff testified at trial that defendant was employed as a presser at his dry cleaning business in 1992 or 1993 and was rehired in May 2002. Defendant was paid weekly but began asking for advances in his pay in 2003. When Wolff refused sometime in2004, defendant quit. The prosecutor asked Wolff, "Do you know the reason why [defendant] asked to be paid every day?" After defendant's objection was summarily overruled, Wolff responded, He had a heroin problem. He . . . said . . . to me one time that . . . [he] got into something that [he] thought [he] could handle, but [he] couldn't, and it's like a monkey on [his] back. And I said, you know, Gino, I said, you're not the Gino that we all knew at one time. And he said I know.

The prosecutor then asked Wolff if defendant's "heroin problem" "affect[ed] the quality of his work." Wolff answered, "Not at all. [Defendant] was working every day."

At the conclusion of the State's case, outside the presence of the jury, the judge stated the following sua sponte:

[W]hen I ruled earlier the jury was present for the witness's testimony that Mr. McCoy told him that he used drugs or he believed he used drugs, that ruling was made in accordance with Rule 401 and 402. I believe it to be relevant. If there were any prejudicial value it would be outweighed by the relevance.

On direct examination, defendant denied committing the robbery. He acknowledged that he left Wolff's employ in August of 2004 "because of the mode of payment dispute that [Wolff] described." He also claimed that he had spoken to Wolff on the phone after October 1, 2004, regarding defendant's unemployment claim, and that Wolff had never "ma[d]e any accusations against [him]" regarding the robbery. Defendant was asked about his arrest on November 24, 2004. As part of his answer, defendant testified that the officers "asked [him] some questions in regard to the Wolff Brothers' robbery and some additional robberies." Defendant claimed that he did not remember being asked many of the questions that appeared in the written statement, nor did he provide some of the answers. He further claimed that he read only the first two pages of the statement, and not the last four pages, before signing them.

On cross-examination, defendant admitted having been convicted of crimes on two occasions in the past, and being sentenced the first time to "[s]even [years] indeterminat[e]," and fifteen years the second time.*fn5 The prosecutor asked defendant if he "knew at the time . . . Pasteur [wa]s interviewing [him] that he was asking [defendant] about other crimes, not only the one [defendant was] here today for, but other crimes as well." Defendant responded, "[T]hat's correct." Later in cross-examination the prosecutor asked defendant whether Pasteur had questioned him about "a robbery that occurred at [his] brother's house[,]" and "a burglary thatoccurred at 79 Chestnut Street." Defendant denied that Pasteur posed those questions to him. Then the prosecutor asked:

Q. You don't remember that [Pasteur] asked you about a withdrawal made out to a woman named Pearl Hardy for $1,500 at the Wachovia Bank? You don't remember that?

A. No, . . . if I remembered, I would say so.

Q. You don't remember saying, in answer to the question, how were you able to withdraw and make deposits on other accounts, that you said, listen, all I need is somebody's information.

You don't remember that?

A. No.

Q. So what you're asking the jury to believe is that you were given a six-page document, that you signed each page charging you with serious crimes, robbery, burglary, theft, fraud, and that you thought you were going home that day.

Is that what your testimony is?*fn6

A. Well, I'm saying to you is I didn't see those crimes that you're speaking of on that paper, or, no, I would not have signed that

There was no objection to this testimony at the time.

At the next recess, the prosecutor sought to recall Pasteur and have him read the entire unredacted statement to the jury. Defense counsel objected and further explained that he had not objected to the prosecutor's questions "because [the judge] already . . . made a ruling allowing [the prosecutor] to do that." He further argued that defendant had not "open[ed] the door to . . . confessions to other crimes[,]" and the testimony was "utterly irrelevant to [defendant's] guilt on this particular offense, or his credibility as to the . . . Wolff robbery."

The judge correctly noted that his prior ruling did not permit the prosecutor to question Pasteur about "other crime evidence." Nevertheless, the judge concluded that the cross-examination was proper "for the purpose of credibility, either rehabilitating . . . Pasteur or challenging [defendant's]; either one." The judge denied the prosecutor's request to read the unredacted statement to the jury. The prosecutor then requested a jury charge advising that the redacted statement was the result of legal rulings made by the judge, but that the jurors could "consider the entire testimony of the defendant with regard to the documents that he signed." The judge asked the prosecutor to draft the charge.

The next morning, the judge read the proposed charge; defense counsel agreed to the language, but noted he was not "waiving any issues for appeal." The judge read the following charge as part of his final instructions:

Any statements involving an investigation of any incident other than this one is not before you and is not to be considered by you and is not relevant other than for the issue of credibility concerning the statement allegedly made to the police by [defendant]. The portions of the written statement that are relevant have been given to you for your consideration.

Before commencing deliberations, the judge told the jury that portions of defendant's statement had been "blank or blacked out" and that the statement "was copied so that the [omitted] information on that page would not be revealed to you because there's no reason for you to speculate or to read information that doesn't pertain to this case."

(b)

Defendant argues that Pasteur and Wolff's testimony regarding his alleged drug use, as well as the prosecutor's cross-examination implying that defendant admitted committing other crimes, resulted in the admission of irrelevant and prejudicial testimony in violation of N.J.R.E. 404(b). The State counters by arguing that none of the testimony "was introduced to show any propensity on defendant's part to commit crimes or wrongful acts, but to [a]ffect defendant's credibility or as part of the res gestae of the robbery charged in the indictment." Alternatively, the State contends any error was harmless beyond a reasonable doubt.

We agree that the questioning of Pasteur and Wolff regarding defendant's alleged drug use, as well as the cross-examination of defendant regarding his statement to Pasteur, was improper and cannot be approved under any theory advanced by the State, either at trial or before us.

N.J.R.E. 404(b) provides that "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." 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. In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

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. [State v. Williams, 190 N.J. 114, 122 (2007) (quoting Cofield, supra, 127 N.J. at 338 (citation omitted)).]

"Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: 'relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.'" State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403). "The evil the Rule seeks to avoid is that '[i]f other crime evidence were to be admitted, the jury might think of . . . defendant as a bad person in general and convict.'" State v. Foglia, 415 N.J. Super. 106, 123 (App. Div.) (quoting Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2010)), certif. denied, 205 N.J. 15 (2010); accord State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

We give "great deference to the decision of the trial [judge]" regarding the admissibility of 404(b) evidence. State v. Barden, 195 N.J. 375, 390 (2008) (citing Lykes, supra, 192 N.J. at 534). "However, when a trial court does not analyze the admissibility of other-crimes evidence under Cofield, we may conduct a plenary review to determine its admissibility." Id. at 391 (citing Lykes, supra, 192 N.J. at 534). Here, since the judge never considered the evidence under the Cofield test, we review the issue de novo.

There is no permissible basis for the questioning of Pasteur or Wolff regarding defendant's heroin use. It was not relevant, under the first prong of Cofield, and it was highly prejudicial.

In order to be relevant, the other-crimes evidence must have a

[T]endency in reason to prove or disprove any fact of consequence to the determination of the action. Consequently, to be relevant, the other-crimes evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan. In determining whether [N.J.R.E.] 404(b) evidence bears on a material issue, the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede. [State v. P.S., 202 N.J. 232, 255-56 (2010) (citations and internal quotation marks omitted).]

The State never proffered the evidence of defendant's drug use as relevant to a "material issue in dispute." Even if it had, we doubt that it would have been admissible under N.J.R.E. 404(b).

In State v. Mazowski, 337 N.J. Super. 275, 278 (App. Div. 2001), we reversed defendant's burglary conviction because the repeated "reference to defendant's drug use violated the prohibition of N.J.R.E. 404(b) against using evidence of 'other crimes' to demonstrate a propensity to commit further crime, and . . . the evidence was not admissible as 'proof of motive.'" Although the trial judge had permitted the evidence as proof of the defendant's motive -- an exception recognized by the Rule --we concluded that evidence of defendant's drug use and addiction as a motive for his constant need for money

[P]osed [an] extremely broad definition of 'motive,' [] that [] does not relate to the particular crime with which defendant is charged, or to any other particular crime.

Rather, it is . . . a reason why defendant commits crime in general. It is an undifferentiated 'motive' to steal. As such, except for its label, it is indistinguishable from a claim that defendant has a 'disposition,' or general propensity to commit crimes, which is precisely what N.J.R.E. 404(b) prohibits. [Id. at 282.]

In this case, the judge concluded that Pasteur's testimony as to what Wolff told him about defendant's drug use was admissible as part of the description the detective obtained, and because it provided a reason why Wolff fired defendant. The judge also thought defendant had "opened th[e] door" by asking Hill about her drug use. Since the judge failed to explain how the evidence was relevant when overruling defendant's objection during Wolff's testimony, we assume the ruling was made on the same basis.

The physical description Pasteur obtained from Wolff was relevant, but the fact that Wolff told Pasteur that defendant had a drug problem was not. While that information might have led Pasteur to focus his investigation upon defendant, the detective's reason for focusing upon defendant was not an issue in dispute. Pasteur knew that Hill's earlier statement had already implicated defendant. Combined with the couple's arrest in Metuchen, there was ample evidence for the jury to understand why defendant was brought to the police station for questioning. Wolff's reasons for firing defendant were also irrelevant to any material issue at trial.*fn7 Furthermore, the prejudicial effect of the testimony far outweighed any probative value. N.J.R.E. 403.

The evidence was also inadmissible on the theory that defendant "opened th[e] door" by asking Hill if she had a drug problem. We fail to see how Hill's alleged drug use, which shedenied, had anything to do with defendant's alleged use of heroin or any material fact in dispute.

The prosecutor's cross-examination of defendant was also improper. Defendant's statement was redacted to eliminate references to questions posed by Pasteur regarding other crimes. The judge emphasized that "other crimes" evidence was not going to be admitted. While the prosecutor was entitled to challenge defendant's direct testimony that he signed blank pages and failed to read other pages of his statement, he was not entitled to question defendant about specific crimes mentioned in the statement. These questions were not relevant to any material issue in dispute, were not intended to admit evidence under one of the exceptions contained in N.J.R.E. 404(b) and were highly prejudicial. In short, the prosecutor's questioning in this regard, combined with the introduction of the redacted statement, clearly implied to the jury that those portions of the statement that were "blank or blacked out" included questions regarding defendant's involvement in other crimes not the subject of the trial.

Defendant failed to object when the questions were asked. Nevertheless, the judge later justified the questioning by noting that the prosecutor was entitled to elicit the information "for the purpose of credibility, either rehabilitating . . . Pasteur or challenging [defendant's]; either one." This, too, was error.

"[O]ther-crimes evidence should not be admitted solely to bolster the credibility of a witness against a defendant." P.S., supra, 202 N.J. at 256 (citing State v. Darby, 174 N.J. 509, 520 (2002)). It was improper to permit the prosecutor to question defendant regarding other crimes referenced in the statement he gave to Pasteur on the theory that it bolstered Pasteur's credibility.

While 404(b) evidence may be admissible to impeach a testifying defendant's credibility, it must still be evaluated under the four-prong Cofield test. Lykes, supra, 192 N.J. at 536-37. As already noted, when defendant denied reading, or even seeing, the information contained on several pages of the statement, and admitted that he signed the statement because he believed Pasteur would release him, the prosecutor was entitled to challenge the credibility of those claims. He did so by showing defendant the unredacted statement and asking him directly about the claim. However, the series of leading questions about other crimes that defendant apparently admitted committing during the course of the statement was highly prejudicial. Applying the Cofield analysis de novo, we concluded that the probative value of the questioning -- challenging defendant's credibility as to whether he admitted committing the Wolff robbery -- was outweighed by the prejudice -- the implication that defendant admitted committing a host of other crimes unrelated to the Wolff robbery.

The State's contention that the evidence was part of the res gestae of the Wolff robbery lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). N.J.R.E. 404(b) does not apply to res gestae evidence, i.e., "'uncharged acts of misconduct that are components of the crime that is the subject of the trial.'" State v. Long, 173 N.J. 138, 161 (2002) (quoting State v. Martini, 131 N.J. 176, 241 (1993)). Res gestae evidence is usually "evidence of conduct occurring 'during the same time frame as the crime charged in the indictment . . . [that] establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.'" State v. L.P., 338 N.J. Super. 227, 235 (App. Div.) (emphasis added) (quoting State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995)), certif. denied, 170 N.J. 205 (2001). Even if admissible as res gestae evidence, the court is required to engage in the weighing process required by N.J.R.E. 403 and employ the Cofield analysis. Long, supra, 173 N.J. at 161.

Evidence of defendant's drug use and involvement in other crimes had nothing to do with the res gestae of the Wolff robbery. Moreover, for the reasons already cited, any probative value was outweighed by significant prejudice.

The close question in this case is whether the admission of this evidence requires reversal. The State contends any error was harmless. "Under the harmless error analysis, any prejudice to the defendant was not such that created a real possibility that the jury arrived at a result it otherwise might not have reached." State v. Marrero, 148 N.J. 469, 492-93 (1997). "[W]e focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits.'" State v. Kemp, 195 N.J. 136, 149 (2008) (quoting State v. Macon, 57 N.J. 325, 338 (1971)).

We acknowledge the strengths of the State's case. Defendant's accomplice, Hill, testified. Defendant gave a confession to the police. He and Hill were apprehended in a car that fit the description of the vehicle likely used by those who robbed Wolff. And there was circumstantial evidence that the robbery was a proverbial "inside job."

Generally speaking, however, the improper admission of "[o]ther-crimes evidence is considered highly prejudicial." State v. Vallejo, 198 N.J. 122, 133 (2009). Such is the case here. The jury was permitted to hear from defendant's former employer -- the victim of the robbery -- that defendant was addicted to heroin, acknowledged that he had "a monkey on [his] back[,]" and was recently fired because he demanded to be paid on a daily, as opposed to weekly basis. The jury quite possibly concluded defendant's drug addiction provided a motive for the robbery; indeed, that supposition was strengthened by Pasteur's testimony that Wolff's description of defendant's drug use was a reason why the detective focused his attention upon defendant. The prosecutor's impermissible cross-examination of defendant regarding his statement to Pasteur quite probably planted in the jury's mind the belief that defendant was suspected of committing various other crimes of acquisition, including other robberies, a burglary and a forgery. The connection with defendant's heroin abuse was implicit.

Even if 404(b) evidence is properly admitted, the judge must "carefully instruct the jury as to its limited use . . . explain[ing] precisely the permitted and prohibited purposes of the evidence." Barden, supra, 195 N.J. at 390 (quotations omitted). "The instruction should be given when the evidence is presented and in the final charge to the jury." Ibid.

In this case, the only instruction the judge provided was that "certain statements . . . concerning other incidents . . . other than this one . . . [are] not to be considered . . . other than for the issue of credibility concerning the statement allegedly made to the police by [defendant]." As noted, the evidence should not have been admitted to assess credibility; moreover, the instruction never told the jury about "the prohibited purposes of the evidence." Ibid.

We also cannot rest assured that defendant would have decided to testify on his own behalf had the drug abuse testimony elicited from Pasteur and Wolff been properly excluded. See P.S., supra, 202 N.J. at 260 (finding harmful error even though the impermissible evidence was not admitted before the jury because it "forced [the] defendant to alter his trial strategy").

In sum, we cannot conclude the evidential rulings were harmless beyond a reasonable doubt. We are therefore reluctantly constrained to reverse.

Reversed.*fn8


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