STATE OF NEW JERSEY VS. MELVIN D. HESTER (17-04-0351, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0090-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MELVIN D. HESTER, a/k/a
H PANCAKE,
Defendant-Appellant.
_________________________
Submitted September 14, 2020 – Decided September 24, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 17-04-0351.
Joseph E. Krakora, Public Defender, attorney for
appellant (Perri J. Koll, Designated Counsel, on the
briefs).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Paula Jordao, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant appeals from his conviction for third-degree aggravated assault
on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(h). 1 The appeal requires
us to examine the jury charge; and to determine whether the judge erred in her
response to a jury question, by quashing three subpoenas, by admitting other -
crimes evidence⸺including defendant's supervision in the jail⸺and by
imposing a mandatory extended prison term of six years with two years of parole
ineligibility. We affirm.
Defendant was incarcerated in the Morris County Correctional Facility
(MCCF) when the incident that led to the charges occurred. The MCCF is a
multi-story building, which houses inmates in different locations based on risk
classifications. Based on his classification, defendant was housed in the third-
floor Manageable Control Unit (3DMCU). He was under more intensive
supervision than other inmates and had limited time out of his cell.
The incident arose when Officers Frank Corrente and Robert Feske were
conducting a formal inmate count of the 3DMCU. After his cell door was
unlocked, defendant charged at Officer Corrente and punched him in the face
1
The jury acquitted him of fourth-degree aggravated assault for throwing bodily
fluid at a law enforcement officer, N.J.S.A. 2C:12-13.
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2
and head. Officer Corrente sustained a concussion, a cut over his right eye, and
a sprained wrist.
On appeal, defendant argues:
POINT I
THE JUDGE COMMITTED HARMFUL ERROR IN
FAILING TO CHARGE THE JURY WITH
CAUSATION AND THE JUDGE'S RESPONSE TO A
JURY QUESTION WAS INADEQUATE BECAUSE
THE JUDGE FAILED TO INSTRUCT THE JURY TO
BEGIN DELIBERATIONS ANEW[.] (Raised Below).
A. The [Judge] Erred in Failing to Charge
Causation at the Outset of the Jury Instruction.
B. The [Judge's] Answer to the Jury's Question
Was Inadequate [B]ecause it [F]ailed to [I]nstruct
the [J]ury to [B]egin [D]eliberations [A]new.
POINT II
THE TRIAL J[UD]GE ERRED IN PERMITTING THE
PROSECUTOR TO INTRODUCE EVIDENCE THAT
[DEFENDANT] WAS BEING HOUSED IN AN
INTENSE SUPERVISION FLOOR. THE
RESULTANT DENIAL OF A FAIR TRIAL
DEMANDS REVERSAL OF THE CONVICTION.
(Raised Below).
POINT III
THE TRIAL JUDGE ERRED IN QUASHING
SUBPOENAS TO THE PRISON FOR PORTIONS OF
THE PRISON'S POLICIES AND PROCEDURES
AND FOR [DEFENDANT'S] OWN FILED
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COMPLAINTS AND GRIEVANCES[.] (Raised
Below).
A. The [Judge] Erred in Quashing [Defendant's]
Narrowly Tailored Subpoena to [MCCF] for [i]ts
Standard Operating Procedures.
B. The [Judge] Erred in Quashing [Defendant's]
Subpoena to [MCCF] for His Own [C]omplaints
and in [S]uppressing [T]estimony [A]bout the
[C]omplaints.
POINT IV
THE ADMISSION OF OTHER-CRIMES EVIDENCE
THAT DEFENDANT HAD PREVIOUSLY
THREATENED OFFICER CORRENTE WAS
ERRONEOUS AND FAR TOO PREJUDICIAL IN A
CASE W[HE]RE DEFENDANT WAS ALLEGED TO
HAVE ASSAULTED THE VICTIM. THE
RESULTANT DENIAL OF A FAIR TRIAL
DEMANDS REVERSAL OF THE CON[V]ICTION.
(Raised Below).
POINT V
[DEFENDANT] WAS NOT SUBJECT TO [AN]
EXTENDED TERM UNDER N.J.S.A. 2C:43-6.4[.]
(Raised Below).
POINT VI
THE TRIAL WAS SO INFECTED WITH ERROR
THAT EVEN IF EACH INDIVIDUAL ERROR DOES
NOT REQUIRE REVERSAL, THE AGGREGATE OF
THE ERRORS DENIED [DEFENDANT] A FAIR
TRIAL. (Raised Below).
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I.
We begin by addressing the jury charge. Here, defendant contends the
judge erred by not initially giving a causation charge; and then once she gave
that charge in response to a jury question, she erred by not directing the jury to
begin deliberations anew. Although defendant requested the charge in defense
counsel's written memorandum, defendant did not object when the judge failed
to charge causation. And after she responded to the jury question and charged
causation, defendant did not ask that the judge direct the jury start over in its
deliberations.
(a)
Our standard of review of jury charges is well settled. "[A]ppropriate and
proper [jury] charges are essential for a fair trial." State v. Baum, 224 N.J. 147,
158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). We must
give "careful attention" to jury instructions. State v. Montalvo, 229 N.J. 300,
320 (2017). "They 'must provide a "comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find."'" Ibid. (quoting State v. Singleton, 211 N.J.
157, 181-82 (2012)). "Because proper jury instructions are essential to a fair
trial, 'erroneous instructions on material points are presumed to' possess the
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capacity to unfairly prejudice the defendant." Baum, 224 N.J. at 159 (quoting
State v. Bunch, 180 N.J. 534, 541-42 (2004)). Because there was no objection,
we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016); State v.
Munafo, 222 N.J. 480, 488 (2015). Plain error is one that is "clearly capable of
producing an unjust result." R. 2:10-2.
Here, the judge used—without objection—the Model Jury Charge
(Criminal), "Aggravated Assault – Upon Certain Corrections Personnel
(Attempting to Cause or Purposely, Knowingly or Recklessly Causing Bodily
Injury) N.J.S.A. 2C:12-1b(5)(h)" (approved Oct. 26, 2015). Model jury charges
are typically afforded a "presumption of propriety." Estate of Kotsovska v.
Liebman, 221 N.J. 568, 596 (2015). During deliberations, the jury asked, "if the
injury was not a direct result of the defendant action (i.e. a punch), but was
related to the altercation (i.e. bruised hand from falling on defendant), does that
constitute bodily injury caused by the defendant[?]" In response, the judge re -
instructed on the requisite states of mind for aggravated assault. She then read
to the jury, without objection, the causation charge and provided a copy to them.
As to causation, the judge charged the jury:
Causation has a special meaning under the law.
To establish causation the State must prove two
elements, each beyond a reasonable doubt.
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First, but for the defendant's conduct the result in
question would not have happened. In other words,
without defendant's actions the result would not have
occurred.
Second, the actionable result must have been
within the design or contemplation of the defendant. If
not, it must involve the same kind of injury or harm as
that designed or contemplated and must also not be too
remote, too accidental in its occurrence, or too
dependent on another's volitional act to have a just
bearing on the defendant's liability or on the gravity of
his offense.
And that's when purposeful or . . . knowing
conduct is involved.
When reckless conduct is involved, for reckless
conduct the actual result must have been within the risk
of which the defendant was aware. If not, it must
involve the same kind of injury or harm as the probable
result and must also not be too remote, too accidental
in its occurrence, or too dependent on another's
volitional act to have a just bearing on the defendant's
liability or on the gravity of his offense.
See Model Jury Charges (Criminal), "Causation (N.J.S.A. 2C:2-3)" (approved
June 10, 2013).
It is well settled that "portions of a charge alleged to be erroneous cannot
be dealt with in isolation[,] but the charge should be examined as a whole to
determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). We
must "not lose sight of the distinction between instructions that are legally
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incorrect and those that are merely 'capable of being improved.'" State v. Cagno,
211 N.J. 488, 514-15 (2012) (quoting State v. Delibero, 149 N.J. 90, 106
(1997)). Based on the entirety of the jury instruction, we see no plain error. See
Wilbely, 63 N.J. at 422.
(b)
There was no basis to direct the jury to deliberate anew after the judge
responded to the jury question. "It is firmly established that '[w]hen a jury
requests a clarification,' the trial [judge] 'is obligated to clear the confusion.'"
State v. Savage, 172 N.J. 374, 394 (2002) (first alteration in original) (quoting
State v. Conway, 193 N.J. Super. 133, 157 (App. Div. 1984)). If the jury's
question is ambiguous, "the judge is obligated to clear the confusion by asking
the jury the meaning of its request." State v. Graham, 285 N.J. Super. 337, 342
(App. Div. 1995).
The judge contemplated the jury's question, which was straightforward,
and discussed her response with counsel before addressing the jury. Counsel
agreed to the judge's response. The judge then responded to the jury, and they
did not ask any follow-up questions. See State v. McClain, 248 N.J. Super. 409,
421 (App. Div. 1991) (emphasizing that the jury's failure "to ask for further
clarification or indicate confusion demonstrates that the response was
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satisfactory"). The judge sufficiently responded, the jury understood the
response, and the jury continued deliberating without any difficulty. Under
these circumstances, there was no reason to direct the jury to restart
deliberations. See ibid.; see also State v. Morgan, 423 N.J. Super. 453, 469-70
(App. Div. 2011), aff'd, 217 N.J. 1 (2013) (presuming a judge's response to a
jury question is proper when the judge consults with counsel before responding).
II.
We now address defendant's evidentiary argument. He contends that it
was prejudicial for the jury to learn that he was housed on a floor of the MCCF
that required "more intensified supervision." We review a trial judge's
evidentiary rulings under an abuse of discretion standard. State v. G.E.P., 458
N.J. Super. 436, 455 (App. Div. 2019), aff'd in part, rev'd in part, ___ N.J. ___,
___ (2020) (slip op. at 16). We "must not 'substitute [our] own judgment for
that of the trial [judge] unless there was a 'clear error of judgment'—a ruling 'so
wide of the mark that a manifest denial of justice resulted.'" State v. Scott, 229
N.J. 469, 479 (2017) (quoting State v. Perry, 225 N.J. 222, 233 (2016)). We see
no abuse of discretion whatsoever.
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In her opening statement to the jury, defense counsel referenced the level
of supervision defendant received while an inmate at the MCCF. Defense
counsel stated:
Imagine that you're in [j]ail. You're locked in a
cell for [twenty-three] hours [a] day. You're not getting
along with the guards for whatever reason. But you're
locked in that cell for [twenty-three] hours [a] day. You
get one hour outside of that cell five times per week.
Now, imagine that there's a guard on your Unit
that doesn't like you. You're having issues with him.
But you can't leave. You have nowhere to go. You're
forced to interact with him every day. He's responsible
for your life. And you depend on him for your most
basic needs.
The State argues that such an opening statement opened the door to
evidence about defendant's location in the MCCF.
The "opening the door" doctrine is essentially a rule of
expanded relevancy and authorizes admitting evidence
which otherwise would have been irrelevant or
inadmissible in order to respond to (1) admissible
evidence that generates an issue, or (2) inadmissible
evidence admitted by the court over objection. The
doctrine of opening the door allows a party to elicit
otherwise inadmissible evidence when the opposing
party has made unfair prejudicial use of related
evidence. That doctrine operates to prevent a defendant
from successfully excluding from the prosecution's
case-in-chief inadmissible evidence and then
selectively introducing pieces of the evidence for the
defendant's own advantage, without allowing the
prosecution to place the evidence in its proper context.
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[State v. B.M., 397 N.J. Super. 367, 380-81 (App. Div.
2008) (emphasis added) (quoting State v. James, 144
N.J. 538, 554 (1996)).]
See also Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008)
(specifying that this doctrine "provides an adverse party the opportunity to place
evidence into its proper context"). However, the doctrine is subject to certain
limitations. Evidence may not be admitted where the probative value of the
otherwise inadmissible evidence "is substantially outweighed by the risk of . . .
[u]ndue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403;
B.M., 397 N.J. Super. at 381.
Defense counsel characterized defendant's supervision—being "locked in
a cell for [twenty-three] hours [a] day"—as an unfair policy of the MCCF, rather
than a result of defendant's actions. The State corrected that characterization
by introducing evidence generally explaining the supervision in the MCCF. The
State attempted to place the supervision in context. See B.M., 397 N.J. Super.
at 381. For example, the assistant prosecutor asked Officer Corrente on direct
examination the following questions.
[Assistant Prosecutor:] Officer Corrente, what does
3DMCU stand for?
[Officer Corrente:] Management Control Unit.
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[Assistant Prosecutor:] Okay. And are inmates housed
in that Unit under more intensified supervision?
[Officer Corrente:] Yes.
[Assistant Prosecutor:] Okay. And, specifically being,
is that the allotment of time that they're allowed out of
their cell each day?
[Officer Corrente:] Yeah. If you're over there, there's
a specific amount of time that you're allowed out of a
cell, yes.
[Assistant Prosecutor:] Okay. And that is part of that
Housing Unit?
[Officer Corrente:] Yes.
....
[Assistant Prosecutor:] Now, during your assignment
with 3DMCU, was [defendant] housed in that area?
[Officer Corrente:] Yes.
In context, the probative value of this information outweighed the risk of
undue prejudice, especially given defendant's position that the supervision was
related to an unfair MCCF policy. Additionally, the judge ensured that this part
of the assistant prosecutor's direct examination was limited to what "3DMCU"
stood for and whether inmates on that floor were subject to more supervision.
The judge specifically stated that the State could not ask about defendant's
behavioral issues.
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III.
After the grand jury returned the indictment, defendant served three
subpoenas for documents from the MCCF. The first sought reports of his
incarceration, names of inmates housed next to his cell, and standard operating
procedures for corrections officers. The MCCF produced documentation except
for policies and confidential information that would jeopardize the safety of the
MCCF. The second sought fifty-four detailed policies identified in the Morris
County Sheriff's Office Policy and Procedural Manual. The third sought
administrative grievances filed by defendant.
Defendant argues that the judge erred in quashing defendant's subpoe na
to the MCCF requesting its policies and procedures. Defendant contends that
he needed these policies so that he could ascertain whether Officer Corrente was
acting in the performance of his duties. See N.J.S.A. 2C:12-1(b)(5)(h).
Defendant asserts that he "intended to put forth the theory that [Officer] Corrente
overreacted to [defendant] based on their prior interactions and that [Officer]
Corrente's response was outside the scope of what is required under the
operating procedures."
"We review the trial [judge's] decision to quash the subpoenas pursuant to
an indulgent standard of review." In re Subpoena Duces Tecum on Custodian
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of Records, 214 N.J. 147, 162 (2013). Thus, "[w]e generally defer to [the] trial
[judge's] disposition of discovery matters unless the [judge] . . . abused [her]
discretion or [her] determination is based on a mistaken understanding of the
applicable law." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371
(2011) (first alteration in original) (quoting Rivers v. LSC P'ship, 378 N.J.
Super. 68, 80 (App. Div. 2005)). We conclude there is no abuse here.
Generally, a criminal defendant is entitled to "broad discovery." State v.
Scoles, 214 N.J. 236, 252 (2013) (quoting State v. D.R.H., 127 N.J. 249, 256
(1992)); see R. 3:13-3(b). "To advance the goal of providing fair and just
criminal trials, we have adopted an open-file approach to pretrial discovery in
criminal matters post-indictment." Scoles, 214 N.J. at 252. Rule 3:13-3
provides an extensive list of relevant materials that the State is required to turn
over to a defendant. R. 3:13-3(b)(1) (including, but not limited to, "books,
tangible objects, papers or documents obtained from or belonging to the
defendant"; "reports or records of prior convictions of the defendant").
However, "[b]uilt into the criminal discovery rule, . . . is a provision for
protective orders to balance the defendant's right to discovery and the State's
interest in protecting against certain harms." Scoles, 214 N.J. at 253. Rule 3:13-
3 and Rule 3:9-1 govern post-indictment discovery, which are still subject to a
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relevance standard. State v. Hernandez, 225 N.J. 451, 453 (2016). "Relevance
is the touchstone of discovery." Id. at 468. "Evidence is relevant if it 'ha[s] a
tendency in reason to prove or disprove any fact of consequence to the
determination of the action.'" Id. at 462 (alteration in original) (quoting N.J.R.E.
401).
Although a judge has the power to allow a defendant to access discovery
outside of what is provided by these rules, the defendant "bears the burden of
establishing need." State ex rel. A.B., 219 N.J. 542, 555 (2014). That burden
is measured by the "nature and extent of the intrusion" to the requested discovery
target's rights. Id. at 557. Further, defendants are not to "transform the
discovery process into an unfocused, haphazard search for evidence."
Hernandez, 225 N.J. at 463 (quoting D.R.H., 127 N.J. at 256); see also State v.
R.W., 104 N.J. 14, 28 (1986) (urging that "allowing a defendant to forage for
evidence without a reasonable basis is not an ingredient of either due process or
fundamental fairness in the administration of the criminal laws").
Under Rule 1:9-2, a judge may quash a subpoena if she finds that it is
unreasonable or if compliance with it would be oppressive. The subpoena's
subject . . . must be specified with reasonable certainty,
and there must be a substantial showing that they
contain evidence relevant and material to the issue. If
the specification is so broad and indefinite as to be
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oppressive and in excess of the demandant's necessities,
the subpoena is not sustainable.
[State v. Cooper, 2 N.J. 540, 556 (1949).]
"The purpose of a subpoena duces tecum is to obtain the production of
documents or other items that will aid in the development of testimony at trial.
It is not appropriately employed as a discovery device in criminal proceedings."
State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980).
As the judge noted, defendant made a large and extensive request for
documents, most of which the Morris County Bureau of Corrections (MCBC)
turned over in a timely manner. As for the request for the MCBC's policies and
procedures, the MCBC claimed that the request was "confidential, unreasonable,
excessive and would jeopardize and undermine the safe and secure operation of
the detention facility." In this case, the judge found, and we agree, that it was
in the interest of the MCBC, its officers and staff, and its inmates to keep these
requested documents confidential. 2 See Wakefield v. Pinchak, 289 N.J. Super.
566, 571 (App. Div. 1996) (noting that where a matter touches upon "personal
2
Defendant briefly mentions that there was no discussion of an in -camera
review. However, the judge addressed this argument, and our Supreme Court
has declared that an in-camera inspection is not an automatic right, specifically
in cases of protecting police activities. See Loigman v. Kimmelman, 102 N.J.
98, 109 (1986).
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safety or institutional security and good order may be seen as having
confidential qualities, even when an element of proof on a charged offense"
(emphasis added)); see also Jacobs v. Stephens, 139 N.J. 212, 221-22 (1995)
(holding that a prison rule prohibiting inmates from receiving copies of
investigation reports is justified by security reasons). Additionally, w e note that
the MCBC complied with the request for the documents that it did not deem
confidential.
As to defendant's request for his grievances, counsel admitted before the
judge that the point of the request was for the number of grievances, not
necessarily the contents of such. However, defendant now asserts that he needed
the grievances to demonstrate that "Officer Corrente overreacted . . . because of
the large amount of complaints that [defendant] filed[.]" Based on defendant's
inconsistent reasoning behind his request, we can surmise that defendant did not
originally have a clear purpose for requesting the grievances, but rather was
hoping to discover something that would help him formulate an argument. See
Hernandez, 225 N.J. at 463 (confirming that defendants are not to use the
discovery process to "haphazard[ly] search for evidence").
Even if defendant demonstrated that the requested policies and grievances
were relevant, the judge had the authority to exclude relevant evidence if its
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probative value was substantially outweighed by the risk of confusing or
misleading the jury, unfair prejudice, or undue delay. N.J.R.E. 403. Here, the
judge found, and we concur, that the jury would have been misled by testimony
regarding defendant's grievances. Defendant's grievances were unsubstantiated,
and the judge stressed that "if a partial and possibly misleading account of the
contents of a report or a preceding investigation is elicited by a defendant, the
State may properly bring before the jury the complete information." See State
v. Knight, 63 N.J. 187, 193 (1973).
In considering the deferential standard of review, the judge properly
quashed the subpoena. Defendant submitted an overly broad subpoena, the
requested information was confidential, and—if admitted—the jury could have
been unfairly misled or prejudiced by the information sought.
IV.
Defendant contends that the judge erred by admitting into evidence that
he had previously threatened Officer Corrente. Specifically, that defendant told
Officer Corrente "[m]eet me on the outside, I'm going to fuck you up" four
months before the incident. The judge held that it was admissible under N.J.R.E.
404(b) to prove defendant's intent and motive.
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Our "review of a trial judge's determination on the admissibility of 'other
bad conduct' evidence is one of great deference." State v. Goodman, 415 N.J.
Super. 210, 228 (App. Div. 2010) (quoting State v. Foglia, 415 N.J. Super. 106,
122 (App. Div. 2010)). Because "[t]he admission . . . of evidence at trial rests
in the sound discretion of the trial [judge]," State v. Willis, 225 N.J. 85, 96
(2016), the trial judge's ruling should be disturbed "[o]nly where there is a 'clear
error of judgment[.]'" State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State
v. DiFrisco, 137 N.J. 434, 496 (1994)).
"N.J.R.E. 404(b) generally precludes the admission of evidence pertaining
to other crimes or wrongs, except to show 'proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue of dispute.'" Goodman, 415 N.J.
Super. at 229 (quoting N.J.R.E. 404(b)). "[W]hen motive or intent is at issue,
we 'generally admit a wider range of evidence.'" State v. Jenkins, 178 N.J. 347,
365 (2004) (quoting State v. Covell, 157 N.J. 554, 565 (1999)). In State v.
Cofield, 127 N.J. 328, 338 (1992), the Court articulated a four-part test to guide
a trial judge's determination of whether to admit such evidence. The Cofield
test requires that:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
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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.
[Ibid. (citation omitted).]
Because the Cofield test assumes that other-crimes evidence is to be
excluded, the burden is on the party seeking to introduce the evidence. Reddish,
181 N.J. at 608-09. The party seeking to admit such evidence must establish
that the "probative value of the evidence is not outweighed by its apparent
prejudice." Id. at 609. Because of this, the fourth prong of the Cofield test is
typically "the most difficult to overcome." State v. Rose, 206 N.J. 141, 160
(2011). Thus, "[i]f other less prejudicial evidence may be presented to establish
the same issue, the balance in the weighing process will tip in favor of
exclusion." Id. at 161 (alteration in original) (quoting State v. Barden, 195 N.J.
375, 392 (2008)).
As to the first factor of the Cofield test, the evidence here is relevant, as
it pertains to a material issue in dispute—whether defendant purposely or
knowingly caused bodily injury to Officer Corrente. After defendant's previous
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threat to Officer Corrente, the officer notified his supervisor. Their relationship
remained tense, with defendant frequently calling him an "asshole," being loud,
and kicking his cell door. The threat is relevant as to defendant's motive and
intent leading to the assault.
Although the judge did not find that the second prong of the Cofield test
was fulfilled, she noted that the State was not required to prove this prong for
the evidence to be admissible. State v. Williams, 190 N.J. 114, 131 (2007)
(noting that the second prong may be eliminated where it "serves no beneficial
purpose"); see also Barden, 195 N.J. at 389 (confirming that the second prong
in Cofield does not apply when the evidence of other offenses is "relevant only
to the defendant's state of mind").
As to the third prong of the Cofield test, the judge found both officers who
testified at the 404(b) hearing to be credible. Particularly, the judge placed
emphasis on Officer Corrente's statement that "defendant threatened him with
harm in a way no other inmate had," which caused him to report the incident.
The judge also relied on evidence submitted by defendant, "wherein defendant
was said to have taken responsibility for the obscene threat hurled at [Officer]
Corrente."
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As to the fourth prong of the Cofield test, the balancing of the evidence's
probative value outweighs any risk of undue prejudice. Cofield, 127 N.J. at 338.
Although this is typically the hardest prong to satisfy, judges "have not
frequently excluded highly prejudicial evidence[.]" State v. Long, 173 N.J. 138,
162 (2002). The analysis of this prong "requires a careful weighing of
competing interests." Barden, 195 N.J. at 392. The judge rejected defendant's
argument that the State merely sought to include this evidence to bolster Officer
Corrente's testimony. The judge found that defendant's threat to "fuck up"
Officer Corrente was highly probative in establishing that defendant attempted
to cause or purposely, knowingly, or recklessly cause bodily injury to Officer
Corrente. See Covell, 157 N.J. at 565 (noting that our courts "generally admit
a wider range of evidence when the motive or intent of the accused is material").
This evidence could lead the jury to find that defendant had a propensity to fulfill
his threat against the officer. Further, it was clear that defendant was already
incarcerated at the time of the offense, and therefore it was not prejudicial that
this other-crimes evidence demonstrated that defendant had been in jail four
months before the assault.
Additionally, contrary to defendant's assertion, the judge indeed gave a
sufficient limiting instruction as follows:
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[O]ur Rules [of Evidence] do permit evidence of other
crimes, wrongs, or acts when the evidence is used for
certain specific narrow purposes. In this case, the
evidence that [defendant] threatened to cause physical
harm to Officer Corrente, if you choose to believe it,
has been introduced only for the specific narrow
purpose to establish [defendant's] state of mind at the
time of the incident and his motive to commit the
crimes alleged.
The judge informed the jury that the evidence was to be disregarded if it was not
in consideration of either state of mind or motive. She concluded her limiting
instruction by reminding the jury that it was not to "consider [the evidence] for
any other purpose and [it] may not find [defendant] guilty now simply because
the State has offered evidence that he committed other crimes, wrongs, or acts."
Defendant's argument that the judge failed to give a limiting instruction is
baseless.
V.
As for his sentence, we agree with the judge that defendant was eligible
for a discretionary prison term under N.J.S.A. 2C:44-3. A judge may, upon
application of the prosecuting attorney⸺like here⸺sentence certain defendants
to an extended term of imprisonment if:
The defendant has been convicted of a crime of the first,
second or third degree and is a persistent offender. A
persistent offender is a person who at the time of the
commission of the crime is [twenty-one] years of age
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or over, who has been previously convicted on at least
two separate occasions of two crimes, committed at
different times, when he was at least [eighteen] years of
age, if the latest in time of these crimes or the date of
the defendant's last release from confinement,
whichever is later, is within [ten] years of the date of
the crime for which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
In 2005, defendant received a prison sentence of seven years for second-
degree sexual assault. Even if defendant should not be subject to a mandatory
extended term, as he argues on appeal, the judge asserted that she would have
used her power to sentence him to a discretionary extended term. The judge
concluded that defendant would be eligible for a discretionary extended term
based on persistent offender status. The judge weighed, and defendant does not
contest, the appropriate aggravating and mitigating factors. See State v. Pierce,
188 N.J. 155, 170 (2006). Appellate review of a sentence is typically guided by
the abuse of discretion standard. See State v. Roth, 95 N.J. 334, 364-65 (1984).
Thus, we need not reach defendant's remaining sentencing arguments.
To the extent we have not addressed defendant's remaining arguments, we
conclude that they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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