                NOT FOR PUBLICATION WITHOUT THE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,         208    N.J.       24   (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,          208   N.J.

544, 565 (2011); State v. Elders, 192 N.J. 224, 243-44 (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, 179 N.J. 586, 598, cert. denied, 543

U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (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, 211 N.J. 117, 132 (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, 208 N.J. 59, 85 (2011) (quoting State v. Reddish, 181

N.J. 553, 608 (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, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105

N.J. 67, 77 (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,

174 N.J. 509, 518 (2002).      Thus, "other-crimes evidence should

not be admitted solely to bolster the credibility of a witness

against a defendant."     State v. P.S., 202 N.J. 232, 256 (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[.]"      Cofield, supra, 127 N.J. at 338.

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, 19 N.J. 218, 228 (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."

Ibid.   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.     Cofield, supra, 127 N.J. at 338-39 (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,

366 N.J. Super. 16, 26 (App. Div.), certif. denied, 180 N.J. 151

(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, 391 U.S. 123, 88 S. Ct. 1620, 20 L.
Ed. 2d 476 (1968).
4
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1603, 16 L. Ed. 2d
694 (1966).


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

State v. Covell, 157 N.J. 554, 572, 575 (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,

241 N.J. Super. 353, 358 (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 ibid.         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      ibid.

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.     Covell, supra, 157 N.J. at 571-75.                  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, 206 N.J. 141 (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, 206 N.J. at 179-80.]

       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).                          Id.

at     182.       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.               Rose, supra, 206 N.J.

at 179.     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.                Ibid.

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

United States v. Green, 617 F.3d 233 (3rd Cir.), cert. denied,

562 U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (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)."             Rose, supra, 206 N.J. at 180.             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, 206 N.J. at 180 (quoting
              Green, supra, 617 F.3d at 248-49 (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.                        Rose, supra,

206 N.J. at 180.        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.                            Rose,

supra, 206 N.J. at 163.             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."               Rose, supra, 206

N.J. at 160.        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."     Rose, supra, 206 N.J. at 160-61.                 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.'"                    Id. at 161

(quoting State v. Barden, 195 N.J. 375, 392 (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.             Barden,   supra,    195   N.J.      at    392.           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.'"                          Rose, supra,

206   N.J.    at   161    (quoting       Barden,      supra,     195    N.J.      at    390).

"[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, 316 N.J. Super. 181, 185 (App. Div.

1998), aff'd o.b., 162 N.J. 27 (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, 318 N.J. Super.

577, 598 (App. Div. 1999), aff'd, 162 N.J. 517 (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, 208 N.J.

at 89-92.

    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, 206 N.J. at 161 (quoting
            Barden, supra, 195 N.J. at 390 (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.    Gillispie,

supra, 208 N.J. at 93-94 (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.                      Cofield, supra,

127 N.J. at 338.


                                         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


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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.                         Cofield,

supra,    127   N.J.    at   338.     While      this    second    prong     is   not

"universally required" in all cases, Rose, supra, 206 N.J. at

163, 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


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requires that "the evidence of the other crime must be clear and

convincing."       Cofield, supra, 127 N.J. at 338.                         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."                      Ibid.          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


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probative value is substantially outweighed by the risk of undue

prejudice."       Rose, supra, 206 N.J. at 161.               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.'" Rose, supra, 206 N.J. at 180
(quoting Green, supra, 617 F.3d at 248-49 (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.


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       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."

Rose, supra, 206 N.J. at 161.                  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




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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.




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