New Jersey Criminal Defense Attorney Blog

This criminal defendant recently won on appeal, by successfully arguing that the trial court erred by improperly admitting evidence pertaining to the defendant's sexual proclivity. By doing so, the defendant avoided a lengthy prison term and registration under Megan's Law.

State v. Kiwanie Salter, unpublished opinion, App. Div. Docket No. A-0502-08T4 (December 24, 2009) - Convictions reversed. "Defendant contends the trial court erred by admitting evidence of 'other acts' evidence that (1) defendant engaged in consensual anal intercourse with C.B., (2) defendant whispered during consensual sex with C.B., (3) defendant kissed his daughter on the mouth, and (4) defendant previously was in possession of a gun.

Defendant also contends that the State produced none of this evidence in discovery, nor did the State provide any advance warning that this evidence would be presented at trial. We agree that prejudicial evidence regarding defendant's preference for anal sex, kissing his daughter on the mouth, and possession of a gun was presented to the jury without meeting the requirements of N.J.R.E. 401, 403, and 404(b)....

First, C.B.'s testimony about defendant's preference for anal intercourse with her was not relevant and should have been excluded.... Defendant's state of mind was not a disputed issue at trial. The defense never suggested that defendant was not guilty because he did not have the requisite criminal intent to engage in anal intercourse with T.B.

The defense argued that the incidents never happened, that T.B.'s testimony was a complete fabrication. We also reject the prosecutor's suggestion that C.B.'s testimony was relevant to prove defendant's motive for the sexual assaults of T.B. We see no 'tendency in reason,' ... between a man's sexual preferences with his adult girlfriend and motivation to engage in sexual activity with a child when the adult relationship has ended....

The prosecutor's proffer on relevance by its own terms established that the testimony was inadmissible under N.J.R.E. 404(b). In effect, the prosecutor said that she sought to offer C.B.'s testimony to prove defendant's disposition to act with T.B. in conformity with his preference for anal sex with C.B. Evidence rule 404(b) expressly prohibits admission of 'evidence of other ... acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith.' N.J.R.E. 404(b)....

Also significant in gauging prejudice to defendant under N.J.R.E. 403 and 404(b) is the trial court's failure to give any limiting instruction with respect to C.B.'s testimony about anal sex." (Rubin M. Sinins)
http://www.judiciary.state.nj.us/opinions/a0502-08.pdf

In this case, the NJ Appellate Division reversed the defendant's conviction after deciding that the trial judge allowed unfairly prejudicial testimony to be presented to the jury.

State v. Amidou Kabre, unpublished opinion, App. Div. Docket No. A-4393-07T4 (December 22, 2009) - Conviction reversed. "Defendant asserts ... that the testimony presented by Officer Kempf, in which the officer described the contents of defendant's black bag and suggested to the jury that defendant was part of conspiracy to illegally export stolen vehicles, should have been excluded as unduly prejudicial.

In particular, defendant maintains that the judge should not have permitted Kempf to testify about the business cards for salvage dealers, insurance companies and locksmiths.

Defendant also contends that the judge should not have permitted Kempf to opine that these documents 'showed a clear trail,' and that 'if somebody gets a salvaged vehicle, switch[es] the VIN plate with a stolen vehicle, puts that vehicle on a ship and sends [it] overseas, it shows a greater conspiracy.'...

In our view, the evidence of the fifty business cards for salvage companies, locksmiths and insurance companies, as well as the salvage titles for a number of other vehicles, were enormously prejudicial. No reasonable juror hearing such evidence could come to any conclusion other than that defendant was involved in the business of exporting stolen vehicles out of the country.

While a juror may not himself or herself have drawn such an inference merely from a listing of the items found in defendant's black bag, any doubt that a juror may have had about whether defendant was involved in criminal activity was laid to rest by Kempf's comment that there was 'a trail here,' because such documents are used when 'stolen vehicles get VIN plates ... and get shipped out of the country.'...

[E]ven though the probative value of the evidence was strong, its prejudice was even greater. Nothing could be more damaging than evidence that defendant is a criminal involved in a wide-ranging scheme to prey upon innocent victims, steal their property, and ship it out of the country for profit. We thus conclude that the prior bad acts evidence in question should not have been admitted because its probative value was exceeded by its prejudice." (Donald F. Browne, Jr.)
http://www.judiciary.state.nj.us/opinions/a4393-07.pdf

In this recent New Jersey criminal case successfully appealed, the appeals court found that the trial judge erred by admitting a nurse's testimony into evidence where that testimony contained inadmissible hearsay, expert testimony, and other improprieties.

State v. K.E., unpublished opinion, App. Div. Docket No. A-4422-07T4 (December 22, 2009) - Convictions reversed. "We first address defendant's contention that the testimony of Treston [a nurse-practitioner who examined the victim at the State's request] contained inadmissible, prejudicial evidence.

[W]e agree, concluding that Treston's testimony was replete with inadmissible hearsay statements, expert testimony, and other-crimes evidence which unfairly prejudiced defendant.... Treston was allowed to provide expert testimony harmful to the defendant, although she was not qualified by the court as an expert witness.

Treston expressed her opinion, based on her observations of E.A. and her years of experience, that E.A. had been 'battered [and] beaten down.'... Treston was not proffered by the State as an expert witness, she was not qualified by the court as an expert witness, and the court did not give the jury the standard charge on expert witness testimony....

In her expert opinion and at other points in her testimony, Treston expressed her opinion that E.A. has sustained multiple anal assaults.... In addition to the hearsay and expert testimony problems noted above, this testimony also constituted other-crimes evidence under N.J.R.E. 404(b)....

If the jury was doubtful whether or not to believe E.A., the testimony of Treston that repeated and augmented E.A.'s testimony, that tended to bolster the credibility of E.A., and that denigrated defendant with inadmissible other-crimes evidence, had the grave potential to impermissibly influence the jury resulting in a miscarriage of justice." (Jeffrey C. Zucker; Jack L. Weinberg, on the brief)
http://www.judiciary.state.nj.us/opinions/a4422-07.pdf