NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1423-11T4 A-0195-12T4 STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. September 3, 2014

MARK C. SHEPPARD, APPELLATE DIVISION

Defendant-Appellant. ———————————————————————————————————

Argued (A-1423-11) and Submitted (A-0195-12) March 5, 2014 – Decided September 3, 2014

Before Judges Sapp-Peterson, Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-12-02182.

Joseph P. Rem, Jr., argued the cause for appellant in A-1423-11 (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel and on the brief; James B. Seplowtiz, on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent in A-1423-11 (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

Rem Zeller Law Group, attorneys for appellant in A-0195-12 (Joseph P. Rem, Jr., of counsel and on the brief; James B. Seplowtiz, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent in A-0195-12 (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

HOFFMAN, J.A.D.

Defendant Mark Sheppard appeals from the judgment of

conviction entered following a jury trial, where he was found

guilty of second-degree aggravated assault and four other

offenses, arising out of the stabbing of a Hispanic man.

Defendant claims trial error regarding admission of evidence to

prove an anti-Hispanic motive for the crimes charged, including

a video-recorded encounter between defendant and the police

subsequent to the stabbing. He had separately filed an appeal

from the denial of a suppression motion and resulting

convictions of two weapons offenses. These appeals are

consolidated for purposes of this opinion. After careful

review, we affirm the denial of defendant's suppression motion

and weapons-offense convictions, but we reverse and remand for a

new trial on the aggravated assault charge and related offenses.

I.

On December 4, 2009, a Bergen County grand jury returned an

eight-count indictment against defendant, charging him with

first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A.

2C:5-1 (count one); second-degree aggravated assault, N.J.S.A.

2 A-1423-11T4 2C:12-1(b)(1) (count two); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2) (count three); third-degree possession of

a weapon (a knife) for unlawful purposes, N.J.S.A. 2C:39-4(d)

(count four); fourth-degree tampering with physical evidence,

N.J.S.A. 2C:28-6(2) (count five); third-degree hindering

apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); second-degree

possession of a weapon (a handgun) by a previously convicted

felon, N.J.S.A. 2C:39-7(b) (count seven); and fourth-degree

possession of weapons (switchblade knives) by a previously

convicted felon, N.J.S.A. 2C:39-7(a) (count eight). The trial

court granted defendant's motion to sever counts seven and eight

for a separate trial. Twenty-two months after the stabbing

incident and less than two months before trial, defendant filed

a notice of claim of self-defense.

Over a period of twelve days, in June and July 2011,

defendant was tried on the charges set out in the first six

counts of the indictment. We glean the following facts from the

trial record.

Born in El Salvador, J.I. came to the United States in

1999. He obtained the necessary visa to remain here legally in

2000, and maintained his visa until 2005, when he became an

undocumented alien.

3 A-1423-11T4 On July 4, 2009, J.I. attended the Independence Day parade

in Ridgewood. After the parade, J.I. went to a tree-shaded area

in a utility right-of-way, where there sits a large concrete

pad, known locally as "The Rock." J.I. hung out there with

friends and got drunk, becoming boisterous, and his friends

eventually left. Sometime later, defendant appeared and had an

altercation with J.I.; as a result, J.I. suffered near-fatal

stab wounds and lost consciousness.

At approximately 9:00 p.m., members of the Waldwick Police

Department were dispatched to investigate a report of an injured

male lying on the ground near a restaurant on Franklin Turnpike.

On arrival, the police officers found J.I. lying on his back,

unresponsive; minutes later, an ambulance rushed J.I. to

Hackensack University Medical Center (HUMC). Dr. Roger Keys, a

trauma surgeon at HUMC, testified J.I. sustained stab wounds on

both sides of his chest; he also found lacerations on J.I.'s

right hand, which he described as "probably defensive wounds."

J.I. lost about four pints of blood and would have bled to death

had he not received treatment when he did. J.I. remained in the

hospital for eight days, and could not return to work for

thirteen months.

J.I. described the stabbing, stating his assailant twice

yelled for him to "shut the fuck up," prior to attacking; he did

4 A-1423-11T4 not hear the assailant utter any anti-Hispanic epithets. When

the police showed him a "photo lineup," he could not identify

his assailant.

The police brought a tracking dog to the area where they

found J.I., and the dog followed a trail of blood to a deck on

the side of defendant's house, approximately 900 feet away. Two

officers looked into a window of defendant's closed garage door

and observed a blood-covered bicycle resting on the floor of the

garage. The police knocked on the front door and called

defendant's telephone number, but received no response. The

police then waited for a detective to arrive.

At about 10:30 p.m., Detective John Frazer of the Bergen

County Prosecutor's Office arrived on the scene. After

conferring with a police officer, Detective Frazer walked to

defendant's home, shined a flashlight into the garage window,

and observed the blood on the bicycle and floor. He then went

to the side deck where he observed blood on the deck in front of

a sliding glass door; while the living room lights were off, he

could see the "glimmer of a T.V. in the living room."

After searching around the outside of the house, Detective

Frazer had an extensive conversation with the police officers

present about their inability to contact anyone within the

house. Concerned about the "copious amount of blood" on the

5 A-1423-11T4 bicycle and on the garage floor, as well as the circumstance

that no one was answering the door or telephone, Detective

Frazer decided to enter the house to "see if we could find an

injured person or an unresponsive person . . . ." Detective

Frazer decided to enter the home without a search warrant

because, in his experience, it would take several hours to

obtain a search warrant and an incapacitated person might not

survive such a wait.

The police entered the unlocked front door of defendant's

house at approximately 11:30 p.m. The police did not find

anyone present, and the search ended at 11:47 p.m. Detective

Frazer then returned to "The Rock," where he learned that the

police had been notified by Valley Hospital that defendant had

been admitted to the emergency room three hours earlier.

Detective Frazer then left to obtain a search warrant for

defendant's home. After obtaining a warrant, the police

searched defendant's home and were finished before 7:30 a.m. on

July 5, 2009. Detective Frazer testified that, in addition to

finding blood on the bicycle, in the garage, and in other areas

of the house, he found blood on a grinding wheel located in the

garage. The blood drops on the grinding wheel provided the

basis for charging defendant with tampering with physical

evidence. Before trial, defendant unsuccessfully moved to

6 A-1423-11T4 suppress all evidence obtained from the two searches of his

home.1

Thomas Butler, a Valley Hospital emergency room nurse,

testified he recorded that defendant was admitted with an injury

to his right hand; he made this entry on July 4, 2009, at 9:14

p.m. Defendant told Butler he received the injury because "he

was intoxicated and had an accident while sharpening a lawn

mower blade."

On October 11, 2009, more than three months after the

stabbing of J.I., defendant was a passenger in a vehicle

operated by a friend, when the vehicle was stopped by a Waldwick

police officer, based upon a suspicion of drunken driving. The

stop occurred in front of defendant's home and the police

allowed him to exit the vehicle, while they conducted a field

sobriety test on the driver. One of the police officers present

wore a sound-recording device during the stop, while a camera,

mounted in a patrol car, video-recorded portions of the stop.

The audio recorder and video camera recorded a loud,

profanity-laced rant of defendant, who appeared intoxicated. He

1 Judge Harry Carroll denied defendant's motion after determining the warrantless search of defendant's home was justified under the emergency-aid exception to the warrant requirement. Judge Carroll only decided the suppression motion; he was not the trial judge.

7 A-1423-11T4 referred to one officer as a "fucking homo" and another as

"fat." He also accused the police of breaking his DVD player

and laptop computer, and stealing his "adult DVDs," during the

search of his home three months earlier, following the stabbing

of J.I. As a result of his aggressive demeanor, the police

threatened to arrest him for disorderly conduct. During the

encounter, defendant appeared to reference the stabbing of J.I.,

when he yelled:

Well, you know what[?] I did nothing in this town except beautify the whole thing and rebuilt half of it and these mother fuckers [inaudible] and start telling me I fucking eviscerated some little Spick[.] [W]ho gives a fuck about some little Spick[?] [A]nd I didn't do it anyway, I wasn't even there[,] so fuck you! Stupid Pigs.

At trial, the State presented the recordings of defendant's

intoxicated rant as evidence of his "hatred and prejudice

against Hispanic immigrants" and as proof of his motive for

attacking J.I.

Defense counsel objected, stating the "video is highly

prejudicial. It shows my client screaming and ranting and

raving and making other statements" not related to Hispanic

persons. The judge overruled the objection and admitted the

bulk of the disputed evidence, ordering only limited redactions

in response to defense counsel's concerns. Specifically, the

8 A-1423-11T4 judge required redaction of the recordings to eliminate

defendant's references to homosexuality, obesity, and prior

drunk-driving episodes. The judge refused to redact the

recording further, reasoning that the "demeanor . . . exhibited

by the defendant on the tape . . . is what it is and I don't

feel that any prejudice that the jury may have towards somebody

flipping out over maybe nothing outweighs the probative value";

the recordings were redacted in accordance with the judge's

ruling.2 The judge also ruled the jury must receive appropriate

limiting instructions when the evidence was presented, and as

part of the jury charge, be instructed on the restricted use

they could make of the evidence under N.J.R.E. 404(b).

Officer Jody Zuzeck testified concerning the October 11,

2009 encounter and the recordings that were made at that time.

The redacted recordings were then played for the jurors, who

were provided with a corresponding transcript. On cross-

examination, Officer Zuzeck was asked whether someone on the

recording had talked "about a gun being pointed at you"; she

replied that defendant "had gone in the house and I believe

2 This video, as redacted, along with testimony of J.M., an acquaintance of defendant, described later, was the only evidence concerning defendant's alleged anti-Hispanic motive for attacking J.I.

9 A-1423-11T4 Officer Greco was indicating to me to take cover because he is

known to have weapons."

Immediately thereafter, the judge issued a limiting

instruction concerning the recording and testimonial evidence.

The judge noted that the evidence involving defendant's anti-

Hispanic comment was admitted to establish defendant's "alleged

motive in attacking [J.I.]," and that

you may not use this evidence to decide that [defendant] has a tendency to commit crimes or simply that he is a bad person. That is[,] you may not decide that just because he has committed wrongs or acts he is more likely to be guilty of the present offense.

I have admitted the evidence only to help you decide the specific question of motive. You may not consider it for any other purpose and may not find that [defendant] is guilty simply because the [S]tate had offered evidence that he may have committed such wrongs or acts.

While the limiting instruction expressly addressed the use that

the jury could make of defendant's anti-Hispanic comment on the

recording, it did not address the use that the jury could make

of any of the other matters contained on the remainder of the

recordings.

As further proof of defendant's alleged anti-Hispanic

motive for stabbing J.I., the State presented the testimony of

J.M., an acquaintance of defendant, concerning derogatory verbal

references that defendant made about Hispanic persons in the

10 A-1423-11T4 past. J.M. testified that he met defendant intermittently over

an eleven-year period at Alcoholics Anonymous meetings and that,

following the meetings, the participants would go out and

socialize over a meal. At such gatherings, J.M. heard defendant

refer to Hispanic persons as "[s]pics or wetbacks" and state

that "spics are going to take over the country, illegal

immigration, [a]nd because they have big families that they

would take over the country, [a]nd that the white man was in

jeopardy."

J.M. also testified that he employed defendant to do

carpentry work for him occasionally and that, when defendant

noticed a four-man Peruvian crew working at J.M.'s construction

site, defendant

expressed to me that I was part of the cause of precipitating the ills of the country, where we're going wrong, that I was hiring illegal immigrants to provide these services, [a]nd [defendant] also expressed that in his neighborhood that Spanish people, or Latinos, or spics were moving into his neighborhood [a]nd he felt jeopardized by that.

At no point did J.M. identify an exact time or place when

defendant made those comments.

On cross-examination, J.M. testified that defendant had

filed a lawsuit against him for unpaid bills for services

rendered and that the matter had been resolved through

11 A-1423-11T4 arbitration, about seven years earlier. He testified that he

was initially angry with defendant for suing him, but that the

anger passed.

Defendant elected to testify at trial; his version of

events occurring at "The Rock" differed markedly from that of

J.I. Defendant claimed he offered to share a drink with J.I.,

who then drew a knife and ordered, in Spanish, that defendant

give him money. Fearing for his safety, defendant reached out

to grab the knife and J.I. lunged at him with the knife, causing

a wound on defendant’s right hand. The two men struggled over

the knife and then fell to the ground, still fighting. Before

they fell, defendant stabbed J.I. with the knife "more than once

in the chest area." After they fell to the ground, defendant

subdued J.I. and the fight ended. Defendant testified that,

following the stabbing, he "got up and was kind of freaking

out." He then jumped on his bicycle and rode home.

Defendant testified he fled the scene and did not call the

police because he thought he "wouldn't get a fair shake from the

police[,]" because of his prior criminal record (a 1992 second-

degree conviction). Defendant also admitted he did not tell the

truth at the hospital when he said he had injured his hand while

sharpening a lawnmower blade. Defendant explained he was

concerned that, if he told the nurse he was involved in a knife

12 A-1423-11T4 fight, the hospital would notify the police, and he "didn't want

police involvement because [he] thought they wouldn't believe

[him] at all."

On July 18, 2011, the jury returned its verdict, finding

defendant not guilty of attempted murder, under count one, but

guilty of second- and third-degree aggravated assault, unlawful

possession of a weapon, evidence tampering, and hindering

apprehension, under the remaining counts. After merger, the

judge sentenced defendant on the second-degree aggravated-

assault conviction to the maximum term of ten years of

imprisonment, subject to an eighty-five percent parole

disqualifier under the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. On the tampering-with-evidence conviction, the judge

sentenced defendant to an eighteen-month term of imprisonment,

and on the conviction of hindering apprehension, defendant

received a five-year term of imprisonment, both terms

consecutive to the sentence for aggravated assault.

On April 17, 2012, defendant pled guilty to the severed

weapon-possession charges, pursuant to a plea agreement, and

received a sentence of five years of imprisonment, to run

concurrently with the prison terms imposed on October 7, 2011.

As part of his plea agreement, defendant reserved the right to

13 A-1423-11T4 appeal the denial of his suppression motion as well as the

court's denial of certain jail credits.

II.

On the appeal of his conviction for the weapon-possession

charges, defendant raises the following issues:

POINT I: THE WARRANTLESS SEARCH OF THE SHEPPARD HOME WAS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL FRUITS OF THAT SEARCH AND FURTHER ERRED IN DENYING THE MOTION TO REOPEN THE HEARING.

POINT II: THE SENTENCING COURT ERRED BY DENYING [DEFENDANT'S] 378 DAYS OF JAIL CREDIT TO WHICH HE WAS ENTITLED BASED ON THE TIME SERVED PRIOR TO SENTENCING ON THE OTHER COUNTS OF THE INDICTMENT.

Regarding defendant's second point, the State now agrees

that defendant should have received 378 days of jail credit,

pursuant to State v. Hernandez,

(2011). We

therefore remand to the Law Division for the entry of an amended

judgment of conviction reflecting these additional jail credits.

Addressing defendant's first point, which challenges the

court's denial of his suppression motion, we are not persuaded

by defendant's arguments. In reviewing a decision on a

suppression motion, we must defer to the judge's factual

findings, so long as they are supported by sufficient credible

evidence, and we owe special deference to the judge's

14 A-1423-11T4 credibility determinations. State v. Diaz-Bridges,

(2011); State v. Elders,

(2007).

At the hearing on the suppression motion, Judge Carroll

heard the testimony of Detective Frazer, who stated he decided

to enter defendant's house without a warrant to search for any

injured or incapacitated persons. Detective Frazer and the

police entered the house at about 11:30 p.m. and searched the

premises, exiting at 11:47 p.m. While they did not find any

injured persons, they did observe a handgun and knives, which

led Detective Frazer to seek a search warrant. Detective Frazer

did not receive information that defendant had been admitted to

a nearby hospital, several hours earlier, until about 12:15

a.m., on July 5, 2009.

Following the hearing, Judge Carroll issued a written

decision denying defendant's suppression motion, concluding the

warrantless search was justified under the "emergency aid

doctrine exception" to the constitutional warrant requirement.

"The emergency aid doctrine is derived from the commonsense

understanding that exigent circumstances may require public

safety officials, such as the police, firefighters, or

paramedics, to enter a dwelling without a warrant for the

purpose of protecting or preserving life, or preventing serious

15 A-1423-11T4 injury." State v. Frankel,

, cert. denied,

,

,

(2004).

At the time that Judge Carroll decided defendant's

suppression motion, New Jersey courts employed a

three-prong test to determine whether a warrantless search by a public safety official is justified under the emergency aid doctrine. Under that test, the public safety official must have an objectively reasonable basis to believe that an emergency requires that he [or she] provide immediate assistance to protect or preserve life, or prevent serious injury; his [or her] primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and there must be a reasonable nexus between the emergency and the area or places to be searched.

[Id. at 600 (footnote omitted) (internal citations omitted).]

Subsequently, in State v. Edmonds,

(2012), the

New Jersey Supreme Court eliminated the second part of the test

(the "subjective-motivation factor"), in order to "align our

jurisprudence with federal law."

Applying the three-part Frankel test, Judge Carroll

determined that the blood trail, the amount of blood observed,

the neighbor's report of defendant's return to his house with a

bleeding hand wound, the lack of response to door-knocking and

telephone calls, and the lack of information from nearby

hospitals, gave Detective Frazer an "objectively reasonable

16 A-1423-11T4 basis . . . to believe that immediate assistance was

necessary[,]" thus satisfying the first part of the test.

According to the judge, the second part was satisfied by

Detective Frazer's testimony that his motivation to conduct the

warrantless search was the large quantity of spilled blood,

which suggested that an injured person could be in the house.

Last, the judge determined that the limited nature of the

seventeen-minute police search of the house led him to conclude

that there was a reasonable nexus between the indicated

emergency and the scope of the search, thus meeting the third

part of the test.

We reject defendant's argument that the warrantless search

was improper because the police waited almost two hours before

entering the house, thus negating the "emergency" basis for the

warrant exception. As Judge Carroll noted the police delayed

entering the house because they were

contacting local hospitals to ascertain whether the defendant had been admitted . . . [G]iven the fluid and on- going nature of the investigation up to that point, the [c]ourt does not consider the lapse in time in developing that information to be fatal to the [police's] determination to enter the home to seek out any person who might be in need of assistance.

Also, more time was required in order for Detective Frazer

to assemble police officers to conduct the search and to have

17 A-1423-11T4 the officers "suited up with their tactical gear," such as

bullet-resistant vests, helmets, and shields. Such gear was

deemed necessary because of the nature of the underlying

offense, a knifing.

Accordingly, we conclude the purported delay by police in

entering the house pursuant to the emergency aid doctrine was

explained by the difficulty in obtaining hospital information

and by the mechanics of the search itself. Defendant is thus

incorrect when he argues that there was no ongoing "emergency"

to support the warrantless entry and search. We affirm the

denial of defendant's suppression, and thus his conviction on

the weapon-possession charges, substantially for the reasons set

forth in Judge Carroll's cogent written opinion.

III.

On the appeal of his conviction for second-degree

aggravated assault and related charges, defendant raises the

following issues:

POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS HIGHLY PREJUDICIAL EVIDENCE OF AN UNRELATED POLICE ENCOUNTER WHICH OCCURRED THREE MONTHS AFTER THE JULY 4TH INCIDENT.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY FAILING TO PROPERLY SANITIZE THE RULE 404(B) OTHER ACTS EVIDENCE AND BY FAILING TO GIVE AN APPROPRIATE LIMITING INSTRUCTION REGARDING THE EVIDENCE OF THE OCTOBER 11, 2009[,] TRAFFIC STOP.

18 A-1423-11T4 A. FAILURE TO APPROPRIATELY SANITIZE THE RULE 404(B) OTHER ACTS EVIDENCE REGARDING THE UNRELATED OCTOBER 11, 2009 TRAFFIC STOP.

B. FAILURE TO GIVE A PROPER LIMITING INSTRUCTION TO THE JURY ON HOW THE JURY WAS TO USE THE EVIDENCE OF [DEFENDANT'S] DEMEANOR.

POINT III: THE TRIAL COURT ERRED IN ADMITTING THE TRIAL TESTIMONY OF [J.M.] REGARDING [DEFENDANT'S] USE OF DEROGATORY TERMS FOR HISPANICS IN ORDER TO PROVE MOTIVE FOR THE CRIMES CHARGED.

POINT IV: THE TRIAL COURT ERRED BY RULING WITHOUT ADEQUATE BASIS THAT DETECTIVE FRAZER COULD REMAIN IN THE COURTROOM AND OBSERVE THE TESTIMONY OF EVERY OTHER STATE WITNESS PRIOR TO HIS OWN TESTIMONY.

POINT V. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION TO COMPEL THE STATE TO DISCLOSE CRIMINAL CASE HISTORIES OF THE STATE'S WITNESSES.

POINT VI: THE WARRANTLESS SEARCH OF DEFENDANT'S HOME WAS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL FRUITS OF THAT SEARCH.

POINT VII: THE TRIAL COURT ERRED BY FAILING TO DISMISS THE INDICTMENT WHERE DETECTIVE FRAZER TAINTED THE PROCEEDINGS WITH UNQUALIFIED MEDICAL EXPERT TESTIMONY AND IMPROPER COMMENT ON [DEFENDANT'S] INVOCATION OF HIS RIGHT TO REMAIN SILENT.

POINT VIII: THE TRIAL COURT ERRED BY ADMITTING THE BELT BUCKLE KNIFE INTO EVIDENCE AND ALLOWING THE STATE'S REBUTTAL

19 A-1423-11T4 WITNESS, [L.F.], TO PROVIDE IRRELEVANT, PREJUDICIAL TESTIMONY.

POINT IX: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON SELF-DEFENSE WHEN THE JURY ASKED FOR DEFINITION OF POSSESSION REGARDING THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

After careful review, we conclude the trial court

mistakenly exercised its discretion when it admitted the bulk of

the evidence concerning the defendant's encounter with police

three months after the stabbing, without appropriate

"sanitization" or jury instructions. Similar error occurred

relating to the testimony of J.M. Concluding the errors were

clearly capable of producing an unjust result, R. 2:10-2, we

reverse defendant's conviction for aggravated assault, and

related charges, and remand for a new trial.

Because evidence of a defendant's bad conduct on another

occasion "has a 'unique tendency' to prejudice a jury against

the defendant, it must be admitted cautiously." State v.

Gillispie,

(2011) (quoting State v. Reddish,

(2004)). "The underlying danger of admitting

other-crime evidence is that the jury may convict the defendant

because he [or she] is 'a "bad" person in general.'" State v.

Cofield,

(1992) (quoting State v. Gibbons,

(1987)). Evidence Rule 404(b) serves to avoid that

consequence.

20 A-1423-11T4 The rule prohibits admission of such evidence to "prove the

disposition of a person in order to show that such person acted

in conformity" with that disposition, but it permits use of such

evidence for other limited purposes — including to establish

motive or intent when "relevant to a material issue in dispute."

N.J.R.E. 404(b). The dispute must be genuine. State v. Darby,

(2002). Thus, "other-crimes evidence should

not be admitted solely to bolster the credibility of a witness

against a defendant." State v. P.S.,

(2010).

In Cofield, the Court developed "a rule of general

application in order to avoid the over-use of extrinsic evidence

of other crimes or wrongs[.]"

.

That rule sets forth in four prongs the necessary conditions for

admission of bad-act evidence:

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.

[Ibid.]

With respect to the first prong, prior to Cofield the Court

stated that when defendant's motive or intent "is important and

21 A-1423-11T4 material, a somewhat wider range of evidence is permitted in

showing such motive or intent than is allowed in the support of

other issues." State v. Rogers,

(1953). The

Court reasoned that "[o]therwise there would often be no means

to reach and disclose the secret design or purpose of the act

charged in which the very gist of the offense may consist."

On that ground, the Court stated a broad rule applicable

to show state of mind:

All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his [or her] actions are admissible in evidence against him [or her] although they may have occurred previous to the commission of the offense.

[Ibid.]

Cofield limited the breadth of that standard by permitting

the use of 404(b) evidence in a case where there is a genuine

dispute about motive or intent. Cofield made it clear that the

State's need for the evidence is a factor important to relevance

under prong one.

(noting

that "if identity is not really in issue . . . it would be

improper to justify the use of other-crime evidence on that

basis").

22 A-1423-11T4 A. Evidence from October 2011 encounter.

On appeal, defendant argues the trial court erred by

failing to suppress, appropriately sanitize, or properly

instruct the jury on the evidence concerning the October 2009

encounter. During the encounter, defendant revealed himself as

a loud, aggressive, and foul-mouthed drunk, who made a single

anti-Hispanic comment referencing J.I.

The trial judge explicitly based the admission of the

encounter evidence on N.J.R.E. 803(b)(1). "N.J.R.E. 803(b)(1),

an exception to the hearsay rule, provides that a statement can

be admitted into evidence if the statement is offered against a

party which is 'the party's own statement, made either in an

individual or in a representative capacity.'" State v. Beckler,

(App. Div.), certif. denied,

(2004).

"Generally, as long as there are no Bruton,3 Miranda,4

privilege or voluntariness problems, and subject to N.J.R.E.

104(c), the State may introduce at a criminal trial any relevant

statement made by a defendant[,]" so long as the statement's

probative value is not substantially outweighed by its

3 Bruton v. United States,

,

,

(1968). 4 Miranda v. Arizona,

,

,

(1966).

23 A-1423-11T4 prejudicial effect on the defendant under N.J.R.E. 403(a).

State v. Covell,

(1999). "'Relevant

evidence' means evidence having a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action." N.J.R.E. 401. "The true test [for relevance] is the

logical connection between the proffered evidence and a fact in

issue, i.e., whether the thing sought to be established is more

logical with the evidence than without it." State v. Hutchins,

(App. Div. 1990).

Even though it was made more than three months after the

stabbing, defendant's single anti-Hispanic comment during the

encounter was plainly relevant both to show defendant's anti-

Hispanic motive for stabbing J.I. and to counter defendant's

asserted claim of self-defense. In his comment, defendant

referred to J.I. as "some little Spick" and denied stabbing him,

claiming to have been somewhere else. Defendant's comment was

relevant because its admission into evidence made it more

logical to conclude both that defendant had an anti-Hispanic

motive for stabbing J.I. and that his subsequent claim of self-

defense was suspect.

Indeed, the State's declared purpose in presenting the

evidence of the October 2009 encounter was to show defendant's

anti-Hispanic motive for attacking J.I. However, applying

24 A-1423-11T4 Hutchins, the question concerning relevance was whether

remaining material on the recording made it "more logical" than

not that defendant had an anti-Hispanic motive when he stabbed

J.I. See

Analysis of the balance of the evidence from

the October 2009 encounter fails to show a "logical connection"

between the remaining material and J.I.'s stabbing to make the

material relevant to show defendant's motive. See

Accordingly, none of the other statements made by defendant, nor

the statements made by police, should have been presented to the

jury. In order to show defendant's alleged motive, the jury

could have been apprised of his single anti-Hispanic comment

without any reference to his drunk and disorderly conduct, his

accusations of police vandalism and theft, his adult videos, or

his possession of firearms and willingness to use them against

police.

Under N.J.R.E. 403(a), evidence is not admissible under

N.J.R.E. 803(b)(1) if its probative value is substantially

outweighed by the risk of undue prejudice or confusion of the

issues.

. Defendant's single

anti-Hispanic comment on the recording is more probative than

prejudicial because his voluntary statement explicitly dealt

with J.I. and the stabbing and indicated a motive for the

stabbing; however, we conclude the balance of the evidence from

25 A-1423-11T4 the October 2009 encounter lacked any significant probative

value and had a clear capacity to unduly prejudice defendant and

to confuse the jury. Accordingly, the remaining material on the

recording should have been excluded under N.J.R.E. 403(a).

Defendant suffered a manifest denial of justice when the trial

court mistakenly exercised its discretion by not excluding it.

The critical error occurred when the trial court failed to

apply N.J.R.E. 404(b) in addressing the encounter evidence. On

June 8, 2011, approximately two weeks before the start of

defendant's trial, the Supreme Court issued its decision in

State v. Rose,

(2011), stating that

[i]n readdressing the other bad acts categories of res gestae evidence, we use this opportunity to direct trial courts to make the Rules of Evidence the touchstone for the analysis of all such evidence. Whenever the admissibility of uncharged bad act evidence is implicated, a Rule 404(b) analysis must be undertaken. The threshold determination under Rule 404(b) is whether the evidence relates to "other crimes," and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403.

Although Rule 404(b) is often described as one of exclusion, it focuses on a distinct, worrisome category of evidence that, if presented, is only admissible for limited purposes, and the jury must be informed both as to how the evidence may, and may not, be used. The Rule provides an

26 A-1423-11T4 analytical framework through which all potential "other crimes, wrongs, or acts" evidence should be sifted. Hence Rule 404(b) shall be the default starting point for analysis of uncharged bad acts that in the past has been also known as res gestae.

[Rose, supra,

.]

Restated, the Rose Court noted that, from that point in

time going forward, evidence involving other bad acts not

charged in a current prosecution, but sought to be admitted in

that prosecution, must be considered under N.J.R.E. 404(b).

. Accordingly, because other uncharged bad acts

(defendant's anti-Hispanic comment, his drunken disorderly

conduct, etc.) were part of the encounter evidence, the Rose

holding applied to defendant's case. Although the record

includes discussion of the Rose decision, the trial court failed

to apply N.J.R.E. 404(b) when considering whether to admit the

encounter evidence.

N.J.R.E. 404(b) governs the admissibility of evidence

involving other crimes, wrongs, or acts, stating that such

evidence is inadmissible

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.

27 A-1423-11T4 According to Rose, the "threshold determination" under N.J.R.E.

404(b) is whether the other-crime/bad-act evidence is actually

evidence concerning other crimes or bad acts or whether it is

evidence intrinsic to the charged crime.

. If it is intrinsic evidence, then N.J.R.E. 404(b) does

not apply because the evidence does not involve some other

crime, but instead pertains to the charged crime.

The Rose Court referred to the Third Circuit's decision in

United States v. Green,

(3rd Cir.), cert. denied,

,

,

(2010), as a

"workable, narrow description of what makes uncharged acts

intrinsic evidence of the charged crime, and therefore not

subject to Rule 404(b)."

. The

Court agreed with the reasoning in Green, stating:

"we . . . reserve the 'intrinsic' label for two narrow categories of evidence. First, evidence is intrinsic if it 'directly proves' the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of 'other crimes, wrongs, or acts.' If uncharged misconduct directly proves the charged offense, it is not evidence of some 'other' crime. Second, 'uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.' But all else must be analyzed under Rule 404(b)."

[Rose, supra,

(quoting

(internal citations omitted)).]

28 A-1423-11T4 Here, the October 2011 encounter occurred three months

after the stabbing, so the encounter evidence does not fall into

the second category of intrinsic evidence consisting of

uncharged acts performed contemporaneously with the charged

crime. However, defendant's anti-Hispanic comment falls into

the first category of intrinsic evidence that directly proves

the charged crime, as it presents a possible motive for the

stabbing.

Also falling into the first category of intrinsic evidence

that directly proves the charged crime was defendant's comment

denying he stabbed J.I. and denying he was at the stabbing

scene. Those denials are seriously undermined by and at odds

with his later claim of self-defense, thus, tending to prove the

charged offense. Accordingly, under the rationale in Rose, the

part of the encounter evidence involving defendant's anti-

Hispanic comment represents intrinsic evidence to which N.J.R.E.

404(b)'s exclusion does not apply.

In contrast, defendant's remaining words and conduct from

the October 2009 encounter provide little, if any, probative

evidence of the charged stabbing offense. Consequently, under

Rose, the non-intrinsic evidence showing defendant's loud and

drunken disorderly conduct, his accusations of police theft and

vandalism, his possession of adult videos, and the police

29 A-1423-11T4 recognition of his potential use of weapons against them should

have been "sifted" through the "analytical framework" of

N.J.R.E. 404(b) to determine its admissibility.

. No such analysis occurred.

Applying Cofield's four-prong test to the material that is

unrelated to the anti-Hispanic comment appearing on the

recording, it is plain that the balance of the material fails to

satisfy the test's first prong. As we noted in discussing

N.J.R.E. 803(b)(1), the remaining material on the recording had

nothing to do with motive.

The second prong of the Cofield test addresses the

similarity and temporality of the disputed evidence; it is not

"universally required" that it be applied in all cases.

. The remaining material on the recording

does not involve any similar anti-Hispanic verbiage or

references to stabbings, and the encounter occurred more than

three months after the stabbing. The remaining material on the

recording does not satisfy the second prong of Cofield.

The third prong of the Cofield test requires the remaining

material evidence be clear and convincing. Defendant's

vociferous statements on the recording clearly satisfied this

prong.

30 A-1423-11T4 "The fourth prong of the Cofield test is typically

considered the most difficult to overcome."

. This is so because, unlike N.J.R.E. 403, which

provides that relevant evidence is admissible unless its

probative value is substantially outweighed by the risk of undue

prejudice, the fourth prong only requires that the "probative

value of the evidence must not be outweighed by its apparent

prejudice."

. Also, "'[i]f

other less prejudicial evidence may be presented to establish

the same issue, the balance in the weighing process [under the

fourth prong] will tip in favor of exclusion.'"

at 161

(quoting State v. Barden,

(2008)).

As noted, the remaining material on the recording had no

probative value or relevance to show defendant's alleged anti-

Hispanic motive in stabbing J.I. Balanced against that minimal

probative value and questionable relevance to the other issues

in the case is the very real prejudice to defendant when the

jury viewed and heard the remaining material depicting him as a

drunken and disorderly person who might shoot police officers,

while he complained about stolen and damaged personal property,

including his adult videos.

Moreover, it was unnecessary to present the prejudicial and

irrelevant remainder material in order to show defendant's

31 A-1423-11T4 alleged anti-Hispanic motive. Instead, such proof of motive was

readily available in "other less prejudicial" but plainly

relevant evidence.

. That

evidence was defendant's single anti-Hispanic comment, which

could have been presented to the jury without the remaining

material.

"[I]n order to minimize 'the inherent prejudice in the

admission of other-crimes evidence, our courts require the trial

court to sanitize the evidence when appropriate.'"

(quoting

).

"[W]here the other-crimes evidence is otherwise admissible but

involves inflammatory and other unduly prejudicial facts, the

judge is obliged to require the evidence to be sanitized to the

extent necessary to accommodate both the State's right to

establish a fact in issue and the defendant's right to a fair

trial." State v. Collier,

(App. Div.

1998), aff'd o.b.,

(1999).

Thus, when admitting N.J.R.E. 404(b) evidence, the trial

court is obliged to "limit the scope of that evidence to those

facts necessary to prove the proposition for which it is

offered." Ibid. That is, the other-crime/bad-acts evidence

must be sanitized so that only those facts are admitted that are

reasonably necessary to advance the probative purpose for which

32 A-1423-11T4 the evidence is proffered. State v. Fortin,

(App. Div. 1999), aff'd,

(2000). Where

unnecessary and prejudicial facts are presented that do not

advance that probative purpose, the fourth prong of the Cofield

test may be deemed to have been violated. Gillispie,

.

Here, the trial court declined defendant's repeated

requests to effectively sanitize the October 2011 encounter

evidence by admitting only the evidence involving defendant's

anti-Hispanic comment. In doing so, the court failed to

sanitize the encounter evidence so as to limit it to those facts

necessary to show defendant's alleged anti-Hispanic motive for

stabbing J.I., which was the State's declared purpose for

seeking to admit the encounter evidence in the first place.

As a result, the fourth prong of the Cofield test was not

satisfied because the clear prejudice to defendant from

admitting the remaining comments and conduct depicted in the

video-recording plainly outweighed any probative value of that

evidence in showing defendant's alleged anti-Hispanic motive.

In sum, because this evidence failed to satisfy three of the

four prongs of the Cofield test, that evidence should have been

excluded by the trial court.

33 A-1423-11T4 The trial court's error in admitting this evidence was

compounded by the failure to provide proper limiting

instructions to the jury. The Rose Court recognized that

limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct, both when the evidence is first presented and again as part of the final jury charge. A suitable limiting instruction "explain[s] precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere."

[Rose, supra,

(quoting

(citation and internal quotation marks omitted)).

Here, the trial court issued limiting instructions, both

when the video-recording was played, and as part of the jury

instructions. The instructions cautioned the jurors that the

encounter evidence, all of it, was "introduced only for a

specific narrow purpose;" that is, "it is offered by the [S]tate

to establish [defendant's] alleged motive in attacking [J.I.]"

The problem with this instruction is that the only part of the

encounter evidence that patently involved defendant's possible

motive for stabbing J.I. was defendant's anti-Hispanic comment

that was directed at J.I.

34 A-1423-11T4 Thus, the jury was not specifically instructed to disregard

the police threat to arrest defendant for drunken and disorderly

conduct, defendant's accusation of police theft and vandalism,

and his possession of adult videos against him as evidence that

he is a "bad" person who was likely to have committed the crimes

charged. While the jury was instructed to disregard Officer's

Zuzeck's testimony that defendant was known to have weapons, it

was not specifically instructed on the use that it could make of

another officer's statement that Officer Zuzeck should take

cover so as to preclude defendant from having a clear shot at

her. Defendant may have been prejudiced by the jury's unguided

use of such evidence, which revealed a concern by police for

their safety. Because the limiting instructions failed to

address the bulk of the material put before the jury of the

October 2011 encounter, they exacerbated the harm that resulted.

In conclusion, the trial court erred when it addressed the

encounter evidence pursuant to N.J.R.E. 803(b)(1). While the

evidence involving defendant's anti-Hispanic comment was

otherwise admissible, the trial court should have applied the

analytical framework of N.J.R.E. 404(b) to the remaining

encounter evidence, as required by Rose. Because the trial

court did not follow the Rose rationale when it admitted the

35 A-1423-11T4 encounter evidence, it made a clear error of judgment and abused

its discretion in doing so.

We further conclude the evidence against defendant

debunking his claim of self-defense was not so overwhelming that

the erroneous admission of the encounter evidence may be deemed

harmless and his convictions therefore affirmed.

(other-bad-acts evidence erroneously

admitted, but reversal not required because of overwhelming and

undeniable evidence of guilt).

There is limited evidence concerning the exact details of

the stabbing and as a result, the jury may have been misled by

the 2009 encounter evidence to conclude defendant's drunken

behavior three months after the stabbing mirrored his behavior

on the day of the stabbing. Specifically, defendant testified

he injured his hand during the fight with J.I. and his medical

expert opined the wound was a "classic defensive injury" usually

suffered by a person defending against a knife attack. The

State presented testimony from a treating surgeon who described

defendant's wound as a "classic knife wound," but who did not

opine whether the wound had been incurred defensively or

offensively. Additionally, the only evidence concerning

defendant's alleged anti-Hispanic motive for attacking J.I. came

from the encounter evidence and the testimony of J.M. According

36 A-1423-11T4 to J.I., his assailant only yelled twice for him to "shut the

fuck up" prior to the attack; the assailant did not utter any

anti-Hispanic epithets. Therefore, against this limited

evidential record, we conclude erroneously admitting the

unsanitized encounter evidence may have improperly contributed

to defendant's convictions. Accordingly, we do not view the

trial court's error as harmless.

B. Testimony of J.M.

Defendant further argues the trial court erred in admitting

testimony from J.M. Prior to trial, the State moved to present

evidence of defendant's alleged anti-Hispanic motive for

stabbing J.I. from J.M., who stated defendant had made

derogatory verbal references about Hispanic persons in the past

and expressed anti-Hispanic and anti-immigrant opinions. The

court granted the State's motion under the other-crimes/bad-acts

analytical framework of N.J.R.E. 404(b) and applied the four-

prong Cofield test for admissibility. The court reasoned that

such evidence was relevant to prove defendant's motive for

stabbing J.I., that J.M.'s testimony constituted clear and

convincing evidence of that motive, and that the probative value

of the evidence clearly outweighed any prejudice defendant would

suffer as a result of admitting the evidence.

.

37 A-1423-11T4 The record does not indicate the trial court issued a

limiting instruction either before or immediately after J.M.'s

testimony, instructing the jury on the use it could make of that

testimony. On the following day, the court issued an

instruction involving J.M., but it did not address the permitted

use of his testimony. Eighteen days after J.M. testified, the

jury viewed and heard the recordings of the October 2011

encounter and received the testimony of Officer Zuzeck. At that

point, the trial court issued a limiting instruction addressing

the restricted use that the jury could make of J.M.'s testimony,

Zuzeck's testimony, and the video-recording.

Subsequently, defendant testified and admitted that he used

the word "spic" in referring to Hispanic persons, explaining

that "construction people speak that way." He also explained

that his concern about the "growing Hispanic and illegal

immigration population in [his] neighborhood" was that landlords

had improperly rented single family dwellings to "20 or 30

people," which had negatively affected property values. He

denied ever stating that "Hispanics are pushing the white man

out of the country."

In admitting J.M.'s testimony, the court correctly treated

defendant's comments to J.M. as bad-act evidence governed by

N.J.R.E. 404(b), but incorrectly applied Cofield's four-prong

38 A-1423-11T4 test in determining its admissibility. Under the first prong of

that test, addressing relevancy, the court correctly found

J.M.'s testimony relevant because defendant's statements plainly

showed an anti-Hispanic animus on his part, thus suggesting a

possible motive for J.I.'s stabbing. The court made no explicit

finding under the second prong of the test, however, which

required that J.M.'s bad-conduct evidence had to be similar in

kind and reasonably close in time to the stabbing.

. While this second prong is not

"universally required" in all cases,

, if it had been addressed, it would have weighed against

admitting J.M.'s testimony, because the record does not indicate

when defendant allegedly made his comments to J.M. If the two

men stopped talking to one another after defendant's lawsuit

against J.M. was arbitrated seven years before trial, J.M.'s

testimony could involve comments made by defendant at least five

years before the stabbing, and possibly much longer. The State

failed to elicit from J.M. any approximate date when the anti-

Hispanic comments were allegedly made. Accordingly, the timing

of those comments remained a matter of speculation, and J.M.'s

testimony did not satisfy the second Cofield prong.

The court appears to have determined that J.M.'s proposed

testimony satisfied the third prong of the Cofield test, which

39 A-1423-11T4 requires that "the evidence of the other crime must be clear and

convincing."

. The court did so

by mistakenly leaving it to the jury to "decide whether or not

the statements were made . . . to [J.M.] by the defendant."

When J.M. testified, it was revealed on cross-examination that

he had been sued by defendant in the past. On its face, that

conflict raises a question as to why he was offering his

testimony against defendant at trial. When this past litigation

is combined with the uncertain timing of defendant's alleged

comments to J.M. and with defendant's denial that he made these

comments, we fail to see support for a finding that J.M.'s

testimony constituted clear and convincing evidence.

Unlike the video-recording, which set out irrefutable

evidence of what defendant said, J.M.'s testimony involved

hearsay that was allowed to be conveyed to the jury by a person

who had been sued by defendant. Consequently, the record does

not support a finding that the third prong of the Cofield test

was satisfied.

Under the fourth prong of the Cofield test, the "probative

value of the [other-crime/bad-act] evidence must not be

outweighed by its apparent prejudice."

As pointed out by

the Rose Court, "[t]hat standard is more exacting than Rule 403,

which provides that relevant evidence is admissible unless its

40 A-1423-11T4 probative value is substantially outweighed by the risk of undue

prejudice."

. That is, under the

Cofield test's fourth prong, the court is only called upon to

determine if the apparent prejudice that would result from

admitting the disputed evidence merely outweighs, not

substantially outweighs, the probative value of the evidence.

Here, the court did not apply the proper standard under the

fourth prong. Instead, the judge reasoned that the disputed

evidence would be admitted unless its probative value "clearly

is outweighed by the prejudice to the defendant." Thus, the

judge would not exclude J.M.'s testimony unless he found "the

prejudice clearly outweighs the motivational evidence or motive

evidence." While the term "clearly outweighs" is not the same

as the term "substantially outweighs" set out in N.J.R.E. 403,

it is also not the same as the term "outweighs" that is set out

in Cofield's fourth prong. In short, the court did not apply

the correct standard when it made its admissibility

determination under the fourth prong.5

5 We note that defendant's anti-Hispanic statements to J.M. do not qualify as intrinsic evidence because they did not "directly" prove the crime charged or "'facilitate the commission of the charged crime.'"

(quoting

(internal citations omitted)). Thus, the only potential pathway for admission of this testimony was Rule 404(b), which was unavailable because the State could not satisfy the Cofield factors.

41 A-1423-11T4 One final problem merits discussion. The trial court

failed to follow the Rose Court's direction requiring a limiting

instruction "to inform the jury of the purposes for which it

may, and for which it may not, consider the evidence of

defendant's uncharged misconduct, both when the evidence is

first presented and again as part of the final jury charge."

. Rather, the court issued its

first limiting instruction addressing J.M.'s testimony eighteen

days after J.M. testified. Thus, the jury was not guided on the

use that it could make of that testimony for a period of more

than two weeks. This was error, an error which may have

prejudiced defendant.

We conclude the court mistakenly exercised its discretion

when it admitted J.M.'s testimony as evidence of defendant's

motive under N.J.R.E. 404(b). J.M.'s proposed testimony did not

plainly satisfy the second, third, and fourth prongs of the

controlling Cofield test, and the court failed to give a timely

limiting instruction to the jury when the testimony was

presented. Like the trial court's admission of the balance of

the encounter evidence, J.M.'s testimony had the potential to

unfairly prejudice defendant in the eyes of the jury. Because

we are convinced these errors were not harmless, we conclude

42 A-1423-11T4 that defendant's convictions for aggravated assault and related

charges must be reversed.

We have carefully reviewed defendant's remaining points in

light of the applicable law and facts, and conclude they lack

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). In regard to A-0195-12, defendant's judgment of

conviction on the weapon-possession charges, we affirm but

remand for the entry of an amended judgment of conviction to

correct the amount of jail credits. In regard to A-1423-11,

defendant's conviction for aggravated assault and all related

charges, we reverse and remand for a new trial.

Affirmed and remanded, in part, and reversed and remanded,

in part.

43 A-1423-11T4