Prior Bad Acts Under NJRE 404(B) Are Generally Inadmissible Unless, The Four Prong Cofield Test Is Met

State v. Canales

Appellate Docket No.: A-5846-17

Decided August 20, 2021

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.

In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether introduction of evidence of an uncharged assault in which the victim did not think she could identify the defendant in the future, prejudiced the defendant on charges of other assaults.

In State v. Canales, the defendant allegedly assaulted several different people over a four month period.

The first victim, an eleven year old girl, allegedly witnessed the defendant fondling himself in his car when he stopped to talk to her.  The victim was unable to identify defendant from the photographs, but testified about his physical description and the vehicle.

The second victim was a seven year old girl who allegedly witnessed defendant masturbating in his car. The victim’s father emerged and the car sped off. The father described the defendant to police along with the vehicle description.  The father could not originally identify defendant at the first trial.

The third victim was a female in her thirties who was at the park with her daughter when a strange man was seated at a bench. The victim went home and the man followed, groped her and squeezed her buttocks then ran away.  She was shown a photograph of defendant but she was not 100% sure.  The victim identified defendant in court at trial as the man who groped her.

The fourth victim was an eleven year old girl in which the defendant allegedly asked her for directions, tried to shake her hand then grabbed her arm and touched her buttocks once or twice, then asked her to take her shirt off and touch her stomach. The man ran away.  The victim provided a description to police but was unable to select defendant’s photograph from an array.  The victim testified she couldn’t see defendant very well and forgot what the man looked like.

Defendant was indicted with second-degree sexual assault upon J.R., who was less than thirteen years of age and defendant being at least four years older, N.J.S.A. 2C:14-2(b) (count one); third-degree endangering the welfare of a child, J.R., N.J.S.A. 2C:24-4(a)(1) (count two); second-degree sexual assault upon H.C., who was less than thirteen years of age and defendant being at least four years older, N.J.S.A. 2C:14-2(b) (count three); third-degree endangering the welfare of a child, H.C., N.J.S.A. 2C:24-4(a)(1) (count four); fourth-degree criminal sexual contact against E.J., N.J.S.A. 2C:14-3(b) (count five); second-degree sexual assault upon L.K-D., who was less than thirteen years of age and defendant being at least four years older, N.J.S.A. 2C:14-2(b) (count six); and third-degree endangering the welfare of a child, L.K-D., N.J.S.A. 2C:24-4(a)(1) (count seven).

The State sought to introduce a separate uncharged incident at defendant’s trial.  A 404(b) hearing was held to determine admissibility. There, the victim was a twenty year old college student who alleged a man exposed himself to her and was masturbating after asking for directions.  The victim was “75% sure” of selecting defendant’s photograph from an array that it was him.

After conducting the 404(b) hearing, the Judge determined this testimony and evidence was admissible under prior bad acts, connecting it to the other incidents.  Defendant was found guilty on all seven charged counts and sentenced to an aggregate prison term of seventeen and one-half years.

Defendant appealed, arguing the testimony admitted of the uncharged act was inadmissible prior bad acts under 404(b). The Appellate Division agreed with defendant, that because the victim was not completely sure it was defendant and because the probative value was outweighed by the prejudice to defendant. Nor did this act connect one offense to multiple offenses and defendant’s acts were not “signature” crimes.  The Appellate Division reversed and remanded for a new trial.

Prior bad acts under NJRE 404(b) are generally inadmissible unless, the four prong Cofield test is met:

  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.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

Meeting this test will allow the evidence to be admissible. However, this test was not met in this case and was ground to reverse.  If you are faced with similar circumstances, contact the experienced criminal defense lawyers at Hark & Hark today.  The attorneys have decades of knowledge of evidence and all the tools to protect you against bad evidence like prior bad acts to ensure your rights are protected.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.



Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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