STATE OF NEW JERSEY VS. JEFFREY PROFITT (17-02-0118, CUMBERLAND COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3440-17T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JEFFREY PROFITT,
Defendant-Respondent.
____________________________________________________
Argued May 30, 2018 – Decided June 26, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 17-02-0118.
Harold B. Shapiro, First Assistant Prosecutor,
argued the cause for appellant (Jennifer Webb-
McRae, Cumberland County Prosecutor,
attorney; Harold B. Shapiro, and Andre R.
Araujo, Assistant Prosecutor, of counsel and
on the brief).
Michael L. Testa argued the cause for
respondent (Testa Heck Testa & White, PA,
attorneys; Michael L. Testa, on the brief).
PER CURIAM
We granted the State's motion for leave to appeal an
interlocutory order that severed a single count of engaging in a
pattern of official misconduct, N.J.S.A. 2C:30-7, from an
indictment's other seven counts, which focused on the defendant
police officer's actions during and after his arrest of A.W. in
Millville in April 2016.1 The decision to sever was based on a
determination that N.J.R.E. 404(b) did not permit the admission
of evidence of an alleged pattern relevant to the eighth count –
a series of alleged similar bad conduct on earlier occasions – in
a trial on the seven A.W. counts. The judge made this determination
by assuming that, even if the first three prongs of the Cofield
test2 could be met, the probative value of the prior bad-act
evidence was outweighed by its prejudicial impact. We find the
1
Those seven counts are: second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7); two counts of third-degree tampering with public
records, N.J.S.A. 2C:28-7(a)(2), (3); fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1); fourth-degree obstructing
the administration of law or other governmental function, N.J.S.A.
2C:29-1(a); and second-degree official misconduct, N.J.S.A. 2C:30-
2(a).
2
State v. Cofield, 127 N.J. 328, 338 (1992) (recognizing four
prongs to the admission of N.J.R.E. 404(b) evidence: (1) the
"evidence of the other crime must be admissible as relevant to a
material issue," (2) "must be similar in kind and reasonably close
in time to the offense charged," (3) the other-crime evidence
"must be clear and convincing," and (4) "[t]he probative value of
the evidence must not be outweighed by its apparent prejudice").
Cofield's temporal requirement is "not universally required."
State v. Rose, 206 N.J. 141, 163 (2011).
2 A-3440-17T4
judge's ruling to be premature; he could not have ascertained or
appreciated the evidence's probative value without having it
adduced and considered at an evidentiary hearing. Accordingly, we
vacate the severance order and remand for further proceedings in
conformity with this decision.
As mentioned, defendant is a police officer. The State alleges
that defendant was dispatched to respond to a 9-1-1 call at a
Millville liquor store. Upon arrival, he found A.W. was belligerent
and "causing public alarm." Defendant arrested A.W. and
transported him to the Millville police station. He also summoned
medical personnel because of A.W.'s level of apparent
intoxication.
While in the police department garage, defendant "took [A.W.]
to the ground," causing A.W. to suffer "several facial fractures"
when his head struck the concrete floor. The emergency medical
technicians summoned by defendant arrived in time to witness this
encounter. They provided testimony to the grand jury that defendant
picked A.W. up off the floor and forcefully brought him into
contact with the ground. A.W.'s face, according to one of the EMT
witnesses, hit the concrete floor like "a pumpkin smashing."3
3
A.W. was taken to a local hospital and underwent three hours of
surgery to repair the fractures to the nasal bone, zygomatic arch
and maxillary sinus.
3 A-3440-17T4
The State claims defendant misled a superior officer when
reporting the extent of A.W.'s injuries; defendant told a
lieutenant only that there was a "little bit of blood from a nose
bleed," leading the lieutenant to call for maintenance to clean
up the area rather than initiate an investigation. It wasn't until
a few hours later that the lieutenant learned of the seriousness
of A.W.'s injuries; that finally prompted an internal
investigation and notice to the prosecutor's office. By that time,
the pool of blood in the parking garage was gone and the scene
could no longer be adequately documented; that time interval also
gave defendant an opportunity to launder his uniform.
In addition to these allegations, the State contends that
defendant failed to properly report the incident. The State claims,
among other things, discrepancies between defendant's reports –
both in terms of timing and subject matter – as well as his failure
to follow proper procedures for intoxicated arrestees and for
documenting the altercation. According to the State, defendant
failed to complete an Attorney General use-of-force report and
falsely claimed the use of force occurred earlier at the liquor
store instead of the parking garage, as witnessed by the EMT
workers.
The State's evidence of prior bad acts concerned eleven other
arrests made by defendant within the preceding three years. In its
4 A-3440-17T4
motion for leave to appeal, the State emphasized three of these
prior arrests. The State claims that, on October 8, 2014 – eighteen
months prior to A.W.'s arrest – defendant arrested W.H., whose
arrest photo depicted facial swelling, bruising, and copious blood
around his nose and forehead. An investigation revealed that, like
A.W., defendant "took [W.H.] to the ground." Defendant's report
at the time did not document any injuries despite W.H.'s notable
appearance in an arrest photo. On May 27, 2015 – eleven months
before A.W.'s arrest – defendant arrested L.S. and, according to
an investigation, grabbed L.S. "by his hair," took him "to the
ground," and struck him "in the face several times with a closed
fist." The injuries suffered by L.S. were not documented in any
arrest report despite the fact that the arrest photo, as was the
case with W.H., revealed facial swelling, bruising, and copious
blood around L.S.'s nose and mouth. And, on June 15, 2015 – ten
months prior to A.W.'s arrest – K.H. was arrested and, according
to an investigation, defendant struck K.H. when he attempted to
pull away. An arrest photo revealed no facial injury, but a photo
taken after K.H. was released from the hospital showed an injury
to the back of his head that was allegedly caused when defendant
struck him with an unspecified weapon.
Defendant was indicted in February 2017. He moved to dismiss
or, in the alternative, to sever the pattern-of-official-
5 A-3440-17T4
misconduct count from the seven A.W. counts. The judge did not
dismiss, but he separated the eighth count from the other seven.
In severing, the judge recognized that any evidence concerning
arrests made and reports filed prior to A.W.'s arrest – although
likely intrinsic to the eighth count – was not intrinsic to the
seven A.W. counts. Without conducting a hearing, and having before
him only a transcript of the grand jury testimony, the judge
assumed that evidence of the alleged prior bad acts was clear and
convincing and that all other Cofield prongs justified admission,4
but he concluded, on the fourth prong, that the evidence would be
too prejudicial if admitted during a trial on the seven A.W.
counts. He determined that severance was necessary because he
could not conceive of a jury instruction that might successfully
persuade a jury to confining its use of that evidence to the eighth
count. The judge similarly amplified on this determination when
denying the State's later reconsideration motion, although the
judge also concluded that the right to seek reconsideration of an
interlocutory order is not permitted by the rules governing
criminal proceedings; in other words, the judge doubted the right
4
The judge made some comments that suggested he believed some or
all of the alleged prior bad acts were too remote in time.
Notwithstanding, it appears that the judge ultimately assumed that
the first three Cofield prongs permitted admission, and we review
the orders in question on that assumption.
6 A-3440-17T4
to reconsider but nevertheless considered the State's arguments
and reached the same conclusion.
The State promptly moved for leave to appeal. We granted the
motion to consider the State's arguments that: (1) a party to a
criminal proceeding may request trial-court reconsideration of an
interlocutory order; (2) the judge erred in concluding that the
evidence relating to alleged bad acts prior to A.W.'s arrest was
inadmissible on the seven A.W. counts; and (3) double-jeopardy
principles and judicial economy require a single trial on all
eight counts. We briefly dispense with the first and third issues.
As to the first, we agree with the State that the Court Rules
do not bar reconsideration motions in criminal matters. To be
sure, the Rules make no mention, but our Supreme Court has
emphatically recognized the availability of this procedure,
expressing in State v. Timmendequas, 161 N.J. 515, 554 (1999),
that it had "never questioned the appropriateness of interlocutory
motions to reconsider in criminal matters." See also State v.
Puryear, 441 N.J. Super. 280, 294-95 (App. Div. 2015). And, as to
the third, while we leave matters of judicial economy to the trial
court's sound discretion, we do not share the State's concern
about the applicability of double-jeopardy principles. Defendant
requested severance and, consequently, he will not be heard to
complain if, at the end of the day, he is required to face separate
7 A-3440-17T4
trials. See State v. Chenique-Puey, 145 N.J. 334, 344 (1996).
Indeed, defendant expressly acknowledges that double jeopardy has
no application because it is he who requested and obtained the
severance order.
With that, we turn to the critical second issue: did the
judge correctly determine that, even though the alleged prior bad
acts are likely admissible as to the pattern-of-official-
misconduct count, the evidence is inadmissible as to the seven
A.W. counts? Although the orders under review concern the direction
that the eighth count be severed from the remainder, the real
issue concerns whether the judge properly determined that N.J.R.E.
404(b) requires exclusion of this evidence in a trial on the A.W.
counts.5
In considering this issue, we discern from the judge's oral
decisions that he assumed the State would be able to show that
evidence of eleven prior arrests meets the first three prongs of
the Cofield test, i.e., that the evidence is "relevant to a
material issue" that is "genuinely disputed," that the evidence
5
That is, even though we granted leave to appeal to review orders
granting severance and denying reconsideration, we have actually
been asked to examine whether the judge properly excluded prior-
bad-act evidence from a trial on the seven A.W. counts. We conclude
that if, as the judge held, this prior-bad-act evidence was
properly excludable from a trial on the A.W. counts, then the
judge acted well within his sound discretion by ordering severance.
8 A-3440-17T4
is "similar in kind and reasonably close in time to the offense
charged," and that there is "clear and convincing" evidence that
the prior bad acts occurred.6 Cofield, 127 N.J. at 338. Instead,
the judge focused on what he believed was the State's inability
to demonstrate the fourth prong, which insists that "[t]he
probative value of the evidence must not be outweighed by its
apparent prejudice." Ibid.In determining the judge prematurely concluded that Cofield's
fourth prong required exclusion, we observe that we have been
presented with no clear revelation about the prior events – other
than the conclusions urged by the State – nor are we able to gather
a sense of its "probative value." Our Supreme Court has recognized
that evidence has probative value when it relates to a genuine
issue – that it not just have "logical relevance or persuasiveness"
but relates to a fact in issue. State v. Stevens, 115 N.J. 289,
301 (1989). The fourth Cofield prong also requires that the judge
ascertain the weight of the evidence about the prior acts. This
incorporates a number of sub-issues. For example, in State v.
Ramseur, 106 N.J. 123, 265-66 (1987), the Court recognized that
6
We should emphasize that the judge only assumed for purposes of
the severance argument that these prongs supported admission of
prior-bad-act evidence. Because we remand for further proceedings
on the admission of this evidence in a trial on the first seven
counts, defendant remains free to argue that these other prongs
cannot be satisfied.
9 A-3440-17T4
"temporal remoteness of a past wrong affects its probative value."
In that sense, after hearing the evidence, the judge may very well
conclude that an alleged bad act that occurred three years prior
may have less probative value than an alleged bad act that occurred
six months before. On the other hand, a three-year-old event might
be far more similar to the A.W. incident and possess far more
probative weight than a more recent but less similar event. This
warrants closer examination than has yet occurred in the trial
court.
Not to be overlooked is the fact that the alleged prior bad
acts are multi-faceted, as are the charges relating to the A.W.
arrest. That is, the State is not only arguing – we assume – that
the prior alleged assaults of arrestees may relate to an issue
regarding the alleged assault of A.W., but also that the prior
alleged cover-ups or concealments are germane to the alleged cover-
up or concealment of defendant's alleged assault of A.W. It is
entirely possible that a judge might conclude in such a situation
that it is simply not an all-or-nothing situation with this
purported N.J.R.E. 404(b) evidence; some but not all of the prior
alleged bad acts may be admissible as to some but not all of the
first seven counts. This, too, requires closer examination of the
particular facts that the State seeks to adduce.
10 A-3440-17T4
We conclude that these issues, and others suggested by the
record, have not been sufficiently aired to allow for any safe
conclusion about the probative value of the alleged prior bad acts
and their weight when compared to any resulting prejudicial effect.
These complications would best be resolved, first, by following
the process suggested in State v. Fortin, 318 N.J. Super. 577,
598-99 (App. Div. 1999), aff'd, 162 N.J. 517 (2000), with counsel
either conferring with each other, or presenting to the judge, or
both, and with specificity, the facts the State seeks to present
about these alleged prior bad acts and the relationship of that
prior conduct to an issue or issues genuinely in dispute in one
or more of the seven A.W. counts. Once the issues are narrowed and
the disputed evidence heard, the judge should then determine,
through the application of all four Cofield factors, whether any
or all of this prior conduct is admissible as to any or all of the
A.W. counts, with particular attention paid to the fourth prong's
proposition that – to be admissible – the probative value of any
such evidence must outweigh its prejudicial effect.
We could go on in this vein, but, rather than attempt to
catalog all other potential problems, we will simply remand the
matter for the judge's renewed and thorough examination of the
problem. In short, having briefly intervened at this interlocutory
stage, we deem it best not to further detain the adjudication of
11 A-3440-17T4
these and all other issues. We remand for the judge's examination
of these concepts and his findings as to the value of the prior-
bad-act evidence and its relationship, or lack thereof, to some
or all of the seven A.W. counts at an evidentiary hearing as
described in N.J.R.E. 104(a). State v. Hernandez, 170 N.J. 106,
127 (2001); see also State v. Lykes, 192 N.J. 519, 540-41 (2007)
(Albin, J., dissenting) (reiterating that our courts are required
"to adhere to strict standards before admitting such evidence and,
typically, to conduct a N.J.R.E. 104 hearing outside the presence
of the jury" when determining the admissibility of N.J.R.E. 404(b)
evidence).
To conclude, the orders under review are vacated and the
matter remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
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