                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-1809-16T1


STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                         October 20, 2017

v.                                      APPELLATE DIVISION


CARLOS B. GREEN,

     Defendant-Respondent.
__________________________


          Submitted September 20, 2017 – Decided October 20, 2017

          Before Judges Fuentes, Koblitz and Suter.

          On appeal from Superior Court of New Jersey,
          Law Division, Essex County, Indictment No.
          15-10-2268.

          Robert D. Laurino, Acting Essex County
          Prosecutor, attorney for appellant (Stephen A.
          Pogany, Special Deputy Attorney General,
          Acting Assistant Prosecutor, on the brief).

          Steven J. Plofsky, attorney for respondent.

     The opinion of the court was delivered by

KOBLITZ, J.A.D.

     The State appeals after leave granted from a October 31, 2016

interlocutory order prohibiting the admission of defendant's two

prior driving while intoxicated (DWI) convictions, N.J.S.A. 2C:11-
5(a), to prove that defendant acted recklessly in his pending

trial on the charge of first-degree vehicular homicide while

intoxicated     within    1000    feet   of   a   school.      N.J.S.A.     2C:11-

5(b)(3)(a).     Because of the statutory inference of recklessness

that   arises   when     driving    while     intoxicated,    as   well   as    our

deferential standard of review, we affirm.

       The State alleges the following facts form the basis of the

pending trial.     On the night of December 27, 2014, defendant was

involved in a motor vehicle collision that resulted in the death

of Billy Ray Dudley.             Dudley was lying in the center of an

intersection when defendant's car struck him.                Toxicology results

revealed defendant's blood-alcohol concentration (BAC) to be 0.210

percent.

       To prove vehicular homicide, the State must show defendant

drove recklessly. N.J.S.A. 2C:11-5(a).             "A person acts recklessly

with respect to a material element of an offense when he [or she]

consciously disregards a substantial and unjustifiable risk that

the material element exists or will result from his [or her]

conduct."     N.J.S.A. 2C:2-2(b)(3).          "Proof that the defendant was

driving    while   intoxicated      in   violation   of     [N.J.S.A.]    39:4-50

. . . shall give rise to an inference that the defendant was

driving    recklessly."          N.J.S.A.     2C:11-5(a)     (emphasis    added).

Driving with a BAC of 0.08 percent or more is a per se DWI


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violation.   N.J.S.A. 39:4-50(a).   The State alleges defendant's

BAC was more than twice that limit.     Driving while intoxicated

"may alone satisfy the recklessness required by the death by auto

statute." State v. Jamerson, 153 N.J. 318, 335 (1998).     The Model

Jury charge reads:

          In determining whether the State has proven
          beyond a reasonable doubt that defendant acted
          recklessly, defendant's unawareness of a risk,
          due   to    self-induced   intoxication,    is
          immaterial. In other words, you may find that
          the State has proven recklessness beyond a
          reasonable doubt even though the defendant was
          unaware of a risk of which he/she would have
          been aware were he/she not intoxicated.

          [Model Jury Charge (Criminal), "Vehicular
          Homicide" (June 2004) (footnotes omitted)].

     Defendant was previously convicted of DWI in 1998 and 2009.

The State seeks to introduce these convictions into evidence under

N.J.R.E. 404(b), which states "evidence of other crimes, wrongs,

or acts is not admissible to prove the disposition of a person in

order to show that such person acted in conformity therewith."

Evidence of prior bad acts "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."      N.J.R.E.

404(b).

     Evidence relating to other bad acts should be handled with

particular caution.   State v. Reddish, 181 N.J. 553, 608 (2004).

                                3                           A-1809-16T1
Prior bad acts are inadmissible "to prove the disposition of a

person in order to show that such person acted in conformity

therewith."     N.J.R.E. 404(b).        Notably, "other-crime evidence has

a unique tendency to turn a jury against the defendant."                    State

v. Stevens, 115 N.J. 289, 302 (1989).           Evidence of prior bad acts

poses   a    "distinct   risk"     of    distracting   the    jury   from    "an

independent consideration of the evidence that bears directly on

guilt itself."      State v. G.S., 145 N.J. 460, 468 (1996) (citing

Stevens, supra, 115 N.J. at 302).

      Although evidence of prior bad acts may be admitted for

specified purposes, the probative value must not be outweighed by

the prejudice resulting from its introduction.               State v. Cofield,

127 N.J. 328, 338 (1992).        Trial courts must engage in a "careful

and pragmatic evaluation" that focuses on "the specific context

in   which   the   evidence   is   offered,    to   determine     whether    the

probative worth of the evidence outweighs its potential for undue

prejudice."     Stevens, supra, 115 N.J. at 303.         The Cofield four-

part test assists trial courts "to avoid the over-use of extrinsic

evidence of other crimes or wrongs."           127 N.J. at 338.

      The four prongs of Cofield limit admissibility of evidence

of prior bad acts to situations where: 1) it is relevant to a

material issue; 2) when admitted for certain purposes, it is

similar in kind and reasonably close in time to the offense


                                         4                            A-1809-16T1
charged; 3) it is clear and convincing; and 4) its probative value

is not outweighed by its apparent prejudice.               State v. Williams,

190 N.J. 114, 122, 131 (2007).

     Only the fourth prong of the Cofield test is at issue.

"Because of the damaging nature of such evidence, the trial court

must engage in a careful and pragmatic evaluation of the evidence

to determine whether the probative worth of the evidence is

outweighed by its potential for undue prejudice."                State v. Rose,

206 N.J. 141, 160 (2011) (quoting State v. Barden, 195 N.J. 375,

389 (2008)).   That standard is "more exacting than [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."    Reddish, supra, 181 N.J. at 608.

     "[T]he    potential   for    undue       prejudice   need   only   outweigh

probative value to warrant exclusion." Ibid. And the State "bears

the burden of establishing that the probative value of the evidence

is not outweighed by its apparent prejudice."              Id. at 608-09.

     Most importantly here, "[i]n weighing the probative worth of

other-crime    evidence,   a     court       should   consider   not    only   its

relevance but whether its proffered use in the case can adequately

be served by other evidence."            Stevens, supra, 115 N.J. at 303.

"If other less prejudicial evidence may be presented to establish




                                         5                               A-1809-16T1
the same issue, the balance in the weighing process will tip in

favor of exclusion."      Barden, supra, 195 N.J. at 392.

     Thus, "the primary focus of [N.J.R.E. 404(b)] . . . is to

view it as a rule of exclusion rather than a rule of inclusion."

State v. Darby, 174 N.J. 509, 520 (2002) (quoting State v. Marrero,

148 N.J. 469, 482-83 (1997)).

     We review N.J.R.E. 404(b) decisions for an abuse of discretion

and "[o]nly where there is a clear error of judgment should the

trial court's conclusion with respect to that balancing test be

disturbed."    Rose, supra, 206 N.J. at 158 (quoting Barden, supra,

195 N.J. at 391).

     The State takes issue with the trial judge's application of

the fourth prong of the Cofield test.         The judge agreed with the

State that defendant's "DWI convictions make it more probable that

the defendant had prior knowledge of the risks associated with

driving under the influence."         The State notes that, having been

convicted twice of DWI, defendant was twice required to attend an

Intoxicated Driver Resource Center.        "The centers . . . conduct a

program   of   alcohol   and   drug   education   and   highway   safety."

N.J.S.A. 39:4-50.        Therefore, defendant had been specifically

instructed about the risks of driving while intoxicated.

     But, as the judge wrote, evidence of the two convictions

"also suggests that the [d]efendant hit the victim while driving


                                      6                           A-1809-16T1
intoxicated because he has previously been convicted of DWI."

Admission of the prior DWI convictions "would suggest to the jury

that the [d]efendant acted in conformity with his prior . . .

behavior."    The prejudicial impact of two prior DWI convictions

in a trial of first-degree vehicular homicide while intoxicated

cannot be overstated.

    Given      N.J.S.A.      2C:11-5(a)'s    statutory        inference        of

recklessness arising from a DWI, it is hard to conceive of a

situation    where   prior   DWI   convictions   would   be    allowed     into

evidence under N.J.R.E.       404(b) when a defendant is charged with

death by auto with evidence he or she drove with a BAC over .08

percent.    Such a rare circumstance did not occur here.          The judge

exercised    his     discretion    soundly   when   refusing      to      admit

defendant's two prior DWI convictions into evidence.

    Affirmed.




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