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State v. Green

Superior Court of New Jersey, Appellate Division

October 20, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
CARLOS B. GREEN, Defendant-Respondent.

          Submitted September 20, 2017

         On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15-10-2268.

          Robert D. Laurino, Acting Essex County Prosecutor, attorney for appellant (Stephen A. Pogany, Special Deputy Attorney General, Acting Assistant Prosecutor, on the brief).

          Steven J. Plofsky, attorney for respondent.

          Before Judges Fuentes, Koblitz and Suter.

          OPINION

          KOBLITZ, J.A.D.

         The State appeals after leave granted from a October 31, 2016 interlocutory order prohibiting the admission of defendant's two prior driving while intoxicated (DWI) convictions, N.J.S.A. 2C:11-5(a), to prove that defendant acted recklessly in his pending trial on the charge of first-degree vehicular homicide while intoxicated within 1000 feet of a school. N.J.S.A. 2C:11-5(b)(3)(a). Because of the statutory inference of recklessness that arises when driving while intoxicated, as well as our deferential standard of review, we affirm.

         The State alleges the following facts form the basis of the pending trial. On the night of December 27, 2014, defendant was involved in a motor vehicle collision that resulted in the death of Billy Ray Dudley. Dudley was lying in the center of an intersection when defendant's car struck him. Toxicology results revealed defendant's blood-alcohol concentration (BAC) to be 0.210 percent.

         To prove vehicular homicide, the State must show defendant drove recklessly. N.J.S.A. 2C:11-5(a). "A person acts recklessly with respect to a material element of an offense when he [or she] consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his [or her] conduct." N.J.S.A. 2C:2-2(b)(3). "Proof that the defendant was driving while intoxicated in violation of [N.J.S.A.] 39:4-50 . shall give rise to an inference that the defendant was driving recklessly." N.J.S.A. 2C:11-5(a) (emphasis added). Driving with a BAC of 0.08 percent or more is a per se DWI violation. N.J.S.A. 39:4-50(a). The State alleges defendant's BAC was more than twice that limit. Driving while intoxicated "may alone satisfy the recklessness required by the death by auto statute." State v. Jamerson, 153 N.J. 318, 335 (1998). The Model Jury charge reads:

In determining whether the State has proven beyond a reasonable doubt that defendant acted recklessly, defendant's unawareness of a risk, due to self-induced intoxication, is immaterial. In other words, you may find that the State has proven recklessness beyond a reasonable doubt even though the defendant was unaware of a risk of which he/she would have been aware were he/she not intoxicated.
[Model Jury Charge (Criminal), "Vehicular Homicide" (June 2004) (footnotes omitted)].

         Defendant was previously convicted of DWI in 1998 and 2009. The State seeks to introduce these convictions into evidence under N.J.R.E. 4 04(b), which states "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." Evidence of prior bad acts "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." N.J.R.E. 404(b).

         Evidence relating to other bad acts should be handled with particular caution. State v. Reddish, 181 N.J. 553, 608 (2004). Prior bad acts are inadmissible "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). Notably, "other-crime evidence has a unique tendency to turn a jury against the defendant." State v. Stevens, 115 N.J. 289, 302 (1989). Evidence of prior bad acts poses a "distinct risk" of distracting the jury from "an independent consideration of the evidence that bears directly on guilt itself." State v. G.S., 145 N.J. 460, 468 (1996) (citing Stevens, supra, 115 N.J. at 302).

         Although evidence of prior bad acts may be admitted for specified purposes, the probative value must not be outweighed by the prejudice resulting from its introduction. State v. Cofield, 127 N.J. 328, 338 (1992). Trial courts must engage in a "careful and pragmatic evaluation" that focuses on "the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice." Stevens, supra, 115 N.J. at 303. The Cofield four-part ...


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