defendant’s predisposition to commit crime to rebut an
entrapment defense. State v. Rockholt, 96 N.J. 570
(1984).
Although N.J.R.E. 404(b) is commonly considered
to address the admission of “other crime” evidence, it is
in fact broader in scope. Under former Evid. R. 55, if the
other conduct was not a “crime or civil wrong,” it was not
subject to the rule. State v. Brown, 138 N.J. 481, 534
(1994); see also State v. Porambo, 226 N.J. Super. 416,
424-25 (App. Div. 1988). Now, however, the rule refers
to “acts,” criminal or not. See State v. Nance, 148 N.J. at
385.
However, conduct which is part of the criminal
events of the case being charged are part of the res gestae
of the case and cannot be excluded under N.J.R.E.
404(b). See State v. Cherry, 289 N.J. Super. 503, 522
(App. Div. 1995); State v. Ortiz, 253 N.J. Super. 239,
244 (App. Div.), certif. denied, 130 N.J. 6 (1992). This
includes evidence which “establishes the context of the
criminal event, explains the nature of, or presents the full
picture of the crime to the jury.” State v. Cherry, supra; see
also State v. Torres, 313 N.J. Super. 129, 161 (App. Div.),
certif. denied, 146 N.J. 425 (1998). (See Res Gestae, infra).
In State v. Cofield, 127 N.J. 328, 338 (1992), the
Supreme Court established a four-part test for the
admission of evidence of other crimes, wrongs, or acts: (1)
the evidence 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, wrong, or act must be clear and convincing;
and (4) pursuant to N.J.R.E. 403, the probative value of
the evidence must not be outweighed by its apparent
prejudice. See also State v. Marrero, 148 N.J. 469, 483
(1997); State v. Collier, 316 N.J. Super. 181, 192-93
(App. Div. 1998), aff’d o.b., 162 N.J. 27 (1999); State v.
Wilson, 158 N.J. Super. 1 (App. Div. 1978). The
admissibility of other-crime evidence is left to the
discretion of the trial court which, because of its intimate
knowledge of the case, is in the best position to engage in
the balancing process. State v. Covell, 157 N.J. at 564. A
decision of a trial court is entitled to deference and
reviewed under an abuse of discretion standard. Id.; State
v. Ramseur, 106 N.J. 123, 266 (1987). Only when there
is a “clear error of judgment” will an abuse of discretion
be found. State v. Covell, 157 N.J. at 564; State v.
Marrero, 148 N.J. at 483.
When evidence is admitted pursuant to N.J.R.E.
404(b), the jury must be given an instruction on its
limited use. State v. Marrero, 148 N.J. at 495; State v.
Cofield, 127 N.J. at 340-41. Because of the inherently
prejudicial nature of other crimes evidence, the limiting
instruction “‘should be formulated carefully to explain
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.’” Id. at 341, quoting State v. Stevens, 115 N.J. at
304; see also State v. G.V., 162 N.J. 252, 260, 262
(2000). In some cases, the failure to give a proper
instruction can be harmless error, see State v. G.S., 145
N.J. 460, 474-476 (1996), but care should be taken in
crafting a precise instruction sufficiently tailored to the
narrow basis for admissibility.Quite recently, the notion of “sanitization” of
N.J.R.E. 404(b) evidence has crept into this State’s
jurisprudence. See State v. Collier, supra. In Collier, too
much of the “gruesome details” surrounding the burning
death of a dog were admitted in that case, which were not
relevant to the fact at issue, the defendant’s motive to rob
and shoot a friend whom the defendant believed had
implicated him in the dog incident. Thus, the horrible
facts of the dog burning had a clear capacity to unduly
prejudice the jury. State v. Collier, 316 N.J. Super. at 185,
190, 194-95.If sanitization is raised in an N.J.R.E. 404(b) context,
it should be pointed out that Collier is best viewed in
terms of the observation by the trial court in that case that
“other than a crime committed against a child, there are
very few factual patterns that would produce as extreme
an emotional response in the minds of the jurors as the
animal abuse here involved.” Id., 316 N.J. Super. at 194.
The details of most other crimes are not likely to provoke
nearly such revulsion, and should be admissible to the
extent they are relevant to the fact in issue.In State v. David Hernandez, 334 N.J. Super. 264
(App. Div. 2000), certif. granted, ___ N.J. ___ (2001),
the Appellate Division reversed defendant’s drug
convictions due to perceived prejudicial error stemming
from certain other-crimes evidence. The codefendant
entered a plea agreement with the State and testified
against the defendant, detailing not only the drug sale
involved in this case but also to events immediately prior
to this transaction and to his alleged drug business
relationship with the defendant for the two months
preceding their arrest.While testimony as to the codefendant’s dealings
with defendant just before their arrest was admissible to
prove preparation and plan pursuant to N.J.R.E. 404(b),