                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3440-17T4


STATE OF NEW JERSEY,

           Plaintiff-Appellant,

     v.

JEFFREY PROFITT,

          Defendant-Respondent.
____________________________________________________

           Argued May 30, 2018 – Decided June 26, 2018

           Before Judges Fisher and Moynihan.

           On appeal from Superior Court of New Jersey,
           Law Division, Cumberland County, Indictment
           No. 17-02-0118.

           Harold B. Shapiro, First Assistant Prosecutor,
           argued the cause for appellant (Jennifer Webb-
           McRae,    Cumberland     County    Prosecutor,
           attorney; Harold B. Shapiro, and Andre R.
           Araujo, Assistant Prosecutor, of counsel and
           on the brief).

           Michael L. Testa argued the cause for
           respondent (Testa Heck Testa & White, PA,
           attorneys; Michael L. Testa, on the brief).

PER CURIAM
     We   granted   the   State's   motion   for   leave   to   appeal    an

interlocutory order that severed a single count of engaging in a

pattern   of   official   misconduct,    N.J.S.A.    2C:30-7,    from     an

indictment's other seven counts, which focused on the defendant

police officer's actions during and after his arrest of A.W. in

Millville in April 2016.1 The decision to sever was based on a

determination that N.J.R.E. 404(b) did not permit the admission

of evidence of an alleged pattern relevant to the eighth count –

a series of alleged similar bad conduct on earlier occasions – in

a trial on the seven A.W. counts. The judge made this determination

by assuming that, even if the first three prongs of the Cofield

test2 could be met, the probative value of the prior bad-act

evidence was outweighed by its prejudicial impact. We find the


1
  Those seven counts are: second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7); two counts of third-degree tampering with public
records, N.J.S.A. 2C:28-7(a)(2), (3); fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1); fourth-degree obstructing
the administration of law or other governmental function, N.J.S.A.
2C:29-1(a); and second-degree official misconduct, N.J.S.A. 2C:30-
2(a).
2
  State v. Cofield, 127 N.J. 328, 338 (1992) (recognizing four
prongs to the admission of N.J.R.E. 404(b) evidence: (1) the
"evidence of the other crime must be admissible as relevant to a
material issue," (2) "must be similar in kind and reasonably close
in time to the offense charged," (3) the other-crime evidence
"must be clear and convincing," and (4) "[t]he probative value of
the evidence must not be outweighed by its apparent prejudice").
Cofield's temporal requirement is "not universally required."
State v. Rose, 206 N.J. 141, 163 (2011).

                                    2                              A-3440-17T4
judge's ruling to be premature; he could not have ascertained or

appreciated   the    evidence's    probative     value    without    having   it

adduced and considered at an evidentiary hearing. Accordingly, we

vacate the severance order and remand for further proceedings in

conformity with this decision.

      As mentioned, defendant is a police officer. The State alleges

that defendant was dispatched to respond to a 9-1-1 call at a

Millville liquor store. Upon arrival, he found A.W. was belligerent

and   "causing      public   alarm."       Defendant     arrested    A.W.     and

transported him to the Millville police station. He also summoned

medical   personnel      because     of      A.W.'s    level    of    apparent

intoxication.

      While in the police department garage, defendant "took [A.W.]

to the ground," causing A.W. to suffer "several facial fractures"

when his head struck the concrete floor. The emergency medical

technicians summoned by defendant arrived in time to witness this

encounter. They provided testimony to the grand jury that defendant

picked A.W. up off the floor and forcefully brought him into

contact with the ground. A.W.'s face, according to one of the EMT

witnesses, hit the concrete floor like "a pumpkin smashing."3



3
  A.W. was taken to a local hospital and underwent three hours of
surgery to repair the fractures to the nasal bone, zygomatic arch
and maxillary sinus.

                                       3                               A-3440-17T4
     The State claims defendant misled a superior officer when

reporting     the   extent   of   A.W.'s   injuries;   defendant    told    a

lieutenant only that there was a "little bit of blood from a nose

bleed," leading the lieutenant to call for maintenance to clean

up the area rather than initiate an investigation. It wasn't until

a few hours later that the lieutenant learned of the seriousness

of   A.W.'s     injuries;     that   finally    prompted    an     internal

investigation and notice to the prosecutor's office. By that time,

the pool of blood in the parking garage was gone and the scene

could no longer be adequately documented; that time interval also

gave defendant an opportunity to launder his uniform.

     In addition to these allegations, the State contends that

defendant failed to properly report the incident. The State claims,

among other things, discrepancies between defendant's reports –

both in terms of timing and subject matter – as well as his failure

to follow proper procedures for intoxicated arrestees and for

documenting the altercation. According to the State, defendant

failed to complete an Attorney General use-of-force report and

falsely claimed the use of force occurred earlier at the liquor

store instead of the parking garage, as witnessed by the EMT

workers.

     The State's evidence of prior bad acts concerned eleven other

arrests made by defendant within the preceding three years. In its

                                      4                             A-3440-17T4
motion for leave to appeal, the State emphasized three of these

prior arrests. The State claims that, on October 8, 2014 – eighteen

months prior to A.W.'s arrest – defendant arrested W.H., whose

arrest photo depicted facial swelling, bruising, and copious blood

around his nose and forehead. An investigation revealed that, like

A.W., defendant "took [W.H.] to the ground." Defendant's report

at the time did not document any injuries despite W.H.'s notable

appearance in an arrest photo. On May 27, 2015 – eleven months

before A.W.'s arrest – defendant arrested L.S. and, according to

an investigation, grabbed L.S. "by his hair," took him "to the

ground," and struck him "in the face several times with a closed

fist." The injuries suffered by L.S. were not documented in any

arrest report despite the fact that the arrest photo, as was the

case with W.H., revealed facial swelling, bruising, and copious

blood around L.S.'s nose and mouth. And, on June 15, 2015 – ten

months prior to A.W.'s arrest – K.H. was arrested and, according

to an investigation, defendant struck K.H. when he attempted to

pull away. An arrest photo revealed no facial injury, but a photo

taken after K.H. was released from the hospital showed an injury

to the back of his head that was allegedly caused when defendant

struck him with an unspecified weapon.

      Defendant was indicted in February 2017. He moved to dismiss

or,   in   the   alternative,   to   sever   the   pattern-of-official-

                                     5                          A-3440-17T4
misconduct count from the seven A.W. counts. The judge did not

dismiss, but he separated the eighth count from the other seven.

In severing, the judge recognized that any evidence concerning

arrests made and reports filed prior to A.W.'s arrest – although

likely intrinsic to the eighth count – was not intrinsic to the

seven A.W. counts. Without conducting a hearing, and having before

him only a transcript of the grand jury testimony, the judge

assumed that evidence of the alleged prior bad acts was clear and

convincing and that all other Cofield prongs justified admission,4

but he concluded, on the fourth prong, that the evidence would be

too prejudicial if admitted during a trial on the seven A.W.

counts. He determined that severance was necessary because he

could not conceive of a jury instruction that might successfully

persuade a jury to confining its use of that evidence to the eighth

count. The judge similarly amplified on this determination when

denying the State's later reconsideration motion, although the

judge also concluded that the right to seek reconsideration of an

interlocutory   order   is   not   permitted   by   the   rules   governing

criminal proceedings; in other words, the judge doubted the right



4
  The judge made some comments that suggested he believed some or
all of the alleged prior bad acts were too remote in time.
Notwithstanding, it appears that the judge ultimately assumed that
the first three Cofield prongs permitted admission, and we review
the orders in question on that assumption.

                                     6                              A-3440-17T4
to reconsider but nevertheless considered the State's arguments

and reached the same conclusion.

     The State promptly moved for leave to appeal. We granted the

motion to consider the State's arguments that: (1) a party to a

criminal proceeding may request trial-court reconsideration of an

interlocutory order; (2) the judge erred in concluding that the

evidence relating to alleged bad acts prior to A.W.'s arrest was

inadmissible on the seven A.W. counts; and (3) double-jeopardy

principles and judicial economy require a single trial on all

eight counts. We briefly dispense with the first and third issues.

     As to the first, we agree with the State that the Court Rules

do not bar reconsideration motions in criminal matters. To be

sure,   the   Rules   make   no    mention,   but   our    Supreme    Court   has

emphatically    recognized        the   availability      of   this   procedure,

expressing in State v. Timmendequas, 161 N.J. 515, 554 (1999),

that it had "never questioned the appropriateness of interlocutory

motions to reconsider in criminal matters." See also State v.

Puryear, 441 N.J. Super. 280, 294-95 (App. Div. 2015). And, as to

the third, while we leave matters of judicial economy to the trial

court's sound discretion, we do not share the State's concern

about the applicability of double-jeopardy principles. Defendant

requested severance and, consequently, he will not be heard to

complain if, at the end of the day, he is required to face separate

                                         7                               A-3440-17T4
trials. See State v. Chenique-Puey, 145 N.J. 334, 344 (1996).

Indeed, defendant expressly acknowledges that double jeopardy has

no application because it is he who requested and obtained the

severance order.

       With that, we turn to the critical second issue: did the

judge correctly determine that, even though the alleged prior bad

acts    are   likely   admissible   as   to   the   pattern-of-official-

misconduct count, the evidence is inadmissible as to the seven

A.W. counts? Although the orders under review concern the direction

that the eighth count be severed from the remainder, the real

issue concerns whether the judge properly determined that N.J.R.E.

404(b) requires exclusion of this evidence in a trial on the A.W.

counts.5

       In considering this issue, we discern from the judge's oral

decisions that he assumed the State would be able to show that

evidence of eleven prior arrests meets the first three prongs of

the Cofield test, i.e., that the evidence is "relevant to a

material issue" that is "genuinely disputed," that the evidence


5
  That is, even though we granted leave to appeal to review orders
granting severance and denying reconsideration, we have actually
been asked to examine whether the judge properly excluded prior-
bad-act evidence from a trial on the seven A.W. counts. We conclude
that if, as the judge held, this prior-bad-act evidence was
properly excludable from a trial on the A.W. counts, then the
judge acted well within his sound discretion by ordering severance.


                                    8                            A-3440-17T4
is "similar in kind and reasonably close in time to the offense

charged," and that there is "clear and convincing" evidence that

the prior bad acts occurred.6 Cofield, 127 N.J. at 338. Instead,

the judge focused on what he believed was the State's inability

to   demonstrate   the   fourth   prong,   which   insists   that    "[t]he

probative value of the evidence must not be outweighed by its

apparent prejudice." Ibid.

      In determining the judge prematurely concluded that Cofield's

fourth prong required exclusion, we observe that we have been

presented with no clear revelation about the prior events – other

than the conclusions urged by the State – nor are we able to gather

a sense of its "probative value." Our Supreme Court has recognized

that evidence has probative value when it relates to a genuine

issue – that it not just have "logical relevance or persuasiveness"

but relates to a fact in issue. State v. Stevens, 115 N.J. 289,

301 (1989). The fourth Cofield prong also requires that the judge

ascertain the weight of the evidence about the prior acts. This

incorporates a number of sub-issues. For example, in State v.

Ramseur, 106 N.J. 123, 265-66 (1987), the Court recognized that


6
  We should emphasize that the judge only assumed for purposes of
the severance argument that these prongs supported admission of
prior-bad-act evidence. Because we remand for further proceedings
on the admission of this evidence in a trial on the first seven
counts, defendant remains free to argue that these other prongs
cannot be satisfied.

                                    9                               A-3440-17T4
"temporal remoteness of a past wrong affects its probative value."

In that sense, after hearing the evidence, the judge may very well

conclude that an alleged bad act that occurred three years prior

may have less probative value than an alleged bad act that occurred

six months before. On the other hand, a three-year-old event might

be far more similar to the A.W. incident and possess far more

probative weight than a more recent but less similar event. This

warrants closer examination than has yet occurred in the trial

court.

     Not to be overlooked is the fact that the alleged prior bad

acts are multi-faceted, as are the charges relating to the A.W.

arrest. That is, the State is not only arguing – we assume – that

the prior alleged assaults of arrestees may relate to an issue

regarding the alleged assault of A.W., but also that the prior

alleged cover-ups or concealments are germane to the alleged cover-

up or concealment of defendant's alleged assault of A.W. It is

entirely possible that a judge might conclude in such a situation

that it is simply not an all-or-nothing situation with this

purported N.J.R.E. 404(b) evidence; some but not all of the prior

alleged bad acts may be admissible as to some but not all of the

first seven counts. This, too, requires closer examination of the

particular facts that the State seeks to adduce.



                               10                           A-3440-17T4
     We conclude that these issues, and others suggested by the

record, have not been sufficiently aired to allow for any safe

conclusion about the probative value of the alleged prior bad acts

and their weight when compared to any resulting prejudicial effect.

These complications would best be resolved, first, by following

the process suggested in State v. Fortin, 318 N.J. Super. 577,

598-99 (App. Div. 1999), aff'd, 162 N.J. 517 (2000), with counsel

either conferring with each other, or presenting to the judge, or

both, and with specificity, the facts the State seeks to present

about these alleged prior bad acts and the relationship of that

prior conduct to an issue or issues genuinely in dispute in one

or more of the seven A.W. counts. Once the issues are narrowed and

the disputed evidence heard, the judge should then determine,

through the application of all four Cofield factors, whether any

or all of this prior conduct is admissible as to any or all of the

A.W. counts, with particular attention paid to the fourth prong's

proposition that – to be admissible – the probative value of any

such evidence must outweigh its prejudicial effect.

     We could go on in this vein, but, rather than attempt to

catalog all other potential problems, we will simply remand the

matter for the judge's renewed and thorough examination of the

problem. In short, having briefly intervened at this interlocutory

stage, we deem it best not to further detain the adjudication of

                               11                           A-3440-17T4
these and all other issues. We remand for the judge's examination

of these concepts and his findings as to the value of the prior-

bad-act evidence and its relationship, or lack thereof, to some

or all of the seven A.W. counts at an evidentiary hearing as

described in N.J.R.E. 104(a). State v. Hernandez, 170 N.J. 106,

127 (2001); see also State v. Lykes, 192 N.J. 519, 540-41 (2007)

(Albin, J., dissenting) (reiterating that our courts are required

"to adhere to strict standards before admitting such evidence and,

typically, to conduct a N.J.R.E. 104 hearing outside the presence

of the jury" when determining the admissibility of N.J.R.E. 404(b)

evidence).

     To conclude, the orders under review are vacated and the

matter remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




                               12                          A-3440-17T4
