STATE OF NEW JERSEY v. JOSE L. ORTIZ

The evidence presented at trial showed that defendant and

M.P. had lived together in Connecticut. In 2010, M.P. relocated

to New Jersey with her three children following an incident with

defendant at her Connecticut home.

During the evening of March 5, 2012, M.P. was in her

apartment in Woodbury when she noticed someone at the front

door. She approached the door, which was unlocked, and saw

defendant, who was yelling and screaming at her. Defendant

pushed his way into the apartment, continued to scream and yell

at M.P., and kicked and punched M.P. on her body, face, and

head.

Defendant took M.P. into the kitchen and cut off her hair

with a pair of scissors. He grabbed M.P. by her neck, held the

scissors to her throat, and said, "[y]ou know what I could have

done with these scissors? I could have killed you with it." He

also made reference to a prior girlfriend, Emily, telling M.P.,







3 A-1552-14T2





"[y]ou [are] lucky I didn't leave you like Emily because I left

Emily that nobody would recognize her."

M.P. awoke on the floor the next morning and saw defendant

sleeping on a bed. She quietly left the apartment and took one

of her children to daycare and the other two children to school.

After dropping off her children, M.P. took the bus to

Gloucester County College, where she took classes at the time.

She spoke with a counselor about what happened the previous

evening. The counselor noticed bruising on M.P.'s nose and face,

drove M.P. to pick up her children at school, and then called

the police.

Woodbury Police Department Officer Andrew Digiambattista

met M.P. and the counselor at the school. The officer received a

report that an unidentified person was attempting to pick up

M.P.'s other child at daycare, but the person was not permitted

to do so. Another officer went to the daycare location to ensure

the unidentified person did not pick up the child.

M.P. was transported to the hospital. An examination

revealed she had bruising on her nose, face, and eyes, and

scratch marks on her neck. It was also observed that her hair

had been cut off in a manner that was described as "chopped."

A subsequent investigation disclosed that defendant's car

was located in front of M.P.'s apartment complex on the evening







4 A-1552-14T2





of March 5, 2012, and through the early morning hours of March

6, 2012. The investigation showed that the Woodbury Police

Department's automatic license reader system detected and took

photographs of a car bearing defendant's Connecticut license

plates at the location of M.P.'s apartment complex at those

times.

Defendant was charged in an indictment with third-degree

terroristic threats, N.J.S.A. 2C:12-3(b) (count one); second

degree burglary, N.J.S.A. 2C:18-2(b)(1) (count two)1; and fourth

degree stalking, N.J.S.A. 2C:12-10(b). The matter was tried

before a jury.

The jury convicted defendant on each of the charges.

Defendant was sentenced to an eight-year custodial term on count

two, with an eighty-five percent period of parole ineligibility

and a three-year period of parole supervision pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received

a four-year custodial term on count one and an eighteen-month

custodial term on count three. The sentences were imposed

concurrently. The court issued a permanent restraining order

against defendant pursuant to N.J.S.A. 2C:12-10.1, prohibiting

1 Count two originally charged defendant under N.J.S.A. 2C:182(a)(1). Prior to trial, count two was amended to charge defendant under N.J.S.A. 2C:18-2(b)(1).







5 A-1552-14T2





defendant from maintaining any proximity to, and having any

communication with, M.P. and her children. This appeal followed.

On appeal defendant's counsel makes the following

arguments:

POINT I



THE COURT ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT. (Partially Raised Below)



POINT II



DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW DUE TO THE COURT'S ERRONEOUS ADMISSION OF 404(b) EVIDENCE AND ITS INADEQUATE LIMITING INSTRUCTION. (Partially Raised Below)



POINT III



DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AND DUE PROESS OF LAW DUE TO THE ERRONEOUS ADMISSION OF HEARSAY EVIDENCE. (Not Raised Below)



POINT IV



THE PROSECUTOR COMMITTED MISCONDUCT WHEN SHE INVENTED FACTS THAT WERE NOT IN THE RECORD AND REPEATEDLY CALLED DEFENDANT "EVIL" AND "WICKED." THE COURT'S LIMITING INSTRUCTION COULD NOT CURE THE PREJUDICIAL EFFECT OF THIS MISCONUDCT. (Partially Raised Below)



POINT V



THE COURT'S FAILURE TO EXCUSE THE ENTIRE JURY POOL FOLLOWING THE JURY'S EXPOSURE TO AN EXCUSED JUROR'S COMMENT ASSOCIATING DEFENDANT WITH A MURDERER DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A







6 A-1552-14T2





FAIR TRIAL BY AN IMPARTIAL JURY. (Not Raised Below)



POINT VI



THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL.





POINT VII



THE RESTRAINING ORDER SHOULD BE REFORMULATED BECAUSE THE OVERBROAD PROHIBITION ON DEFENDANT "MAINTAINING. . . PHYSICAL PROXIMITY" TO THE VICTIM IS UNAUTHORIZED BY STATUTE, WHICH REQUIRES THAT THE FORBIDDEN PLACES BE SPECIFICALLY STATED.



In defendant's pro se supplemental brief, he argues:

POINT I



DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW AND SUBSEQUENTLY A FAIR TRIAL DUE TO THE COURT[']S ERRONEOUS FAILURE TO EXCUSE JURORS FOR CAUSE[,] PURSUANT TO [] [RULE] 1:83[2.2].



POINT II



THE DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW DUE TO THE COURT[']S ERRONEOUS ADMISSION OF UNQUALIFIED EXPERT TESTIMONY, PURSUANT TO [THE NEW JERSEY] RULES OF EVIDENCE.



II.



We first consider defendant's argument the trial judge

erred by failing to instruct the jury on the elements of simple







7 A-1552-14T2





assault, N.J.S.A. 2C:12-1(a), as a lesser-included offense2 of

second-degree burglary, N.J.S.A. 2C:18-2, under count two.

Defendant contends the charge was required because the

indictment alleged that defendant "purposely, knowingly or

recklessly inflicted bodily injury on [M.P.]" during the

commission of the burglary and therefore charged the elements of

a simple assault under N.J.S.A. 2C:12-1(a)(1). Defendant

asserts the court was required to charge the jury with the

lesser-included offense of simple assault because it was alleged

as an element of the second-degree burglary charged in count

two.

At trial, defendant did not request the simple assault

charge. It was requested by the State. In response to the

request, the judge opined that it was not appropriate to charge

simple assault as a lesser-included offense because defendant's

alleged infliction of bodily injury upon M.P. did not constitute

an element of second-degree burglary and was relevant only to

enhance defendant's potential conviction for burglary from a

third-degree to a second-degree offense. N.J.S.A. 2C:18-2(b).

2 Defendant does not argue that simple assault should have been charged as a related offense. See State v. Thomas, 187 N.J. 119, 129-30 (2006). We therefore limit our discussion to defendant's claim that simple assault should have been charged as a lesserincluded offense.







8 A-1552-14T2





Defendant and the State did not challenge the judge's view, and

the charge was not given.

A defendant's failure to object to jury instructions is

"considered a waiver to object to the instruction[s] on appeal."

State v. Maloney, 216 N.J. 91, 104 (2013). In the absence of an

objection to a charge or request for a charge, however, "a trial

court has an independent obligation to instruct on lesser

included charges when the facts adduced at trial clearly

indicate that a jury could convict on the lesser while

acquitting on the greater offense." State v. Jenkins, 178 N.J.

347, 361 (2004). This is because "an erroneous jury charge 'when

the subject matter is fundamental and essential or is

substantially material' is almost always considered

prejudicial." Maloney, supra, 216 N.J. at 104-05 (quoting State

v. Green, 86 N.J. 281, 291 (1981)).

Such errors present "'[a] presumption of reversible error'

. . . that can only be excused if the error is determined to be

'harmless beyond a reasonable doubt.'" Id. at 105 (quoting State

v. Collier, 90 N.J. 117, 123 (1982)). We therefore consider

defendant's challenge to the court's failure to charge simple

assault as a lesser-included offense under the plain error







9 A-1552-14T2





standard.3 R. 2:10-2; Maloney, supra, 216 N.J. at 104; see also

Jenkins, supra, 178 N.J. at 360 (finding plain error standard

applied to defendant's challenge on appeal to a jury charge to

which he did not object at trial). We must first determine if

the court erred by failing to give the instruction and if it

did, whether the failure "was clearly capable of producing an

unjust result such that a reasonable doubt is raised as to

whether the error led the jury to a result it otherwise might

not have reached." Jenkins, supra, 178 N.J. at 360-61 (quoting

State v. Brims, 168 N.J. 297, 306 (2001)); State v. Ramsey, 415

N.J. Super. 257, 266 (App. Div. 2010), certif. denied, 205 N.J.

77 (2011).

To determine whether a lesser-included offense charge is

appropriate, a court must find the offense "satisf[ies] the

definition of an included offense set forth in N.J.S.A. 2C:1

8(d) and . . . that there is a rational basis in the evidence to

3 We do not consider defendant's argument under the invited error doctrine. "Under that settled principle of law, trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . .'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). We find the principle inapplicable because it does not apply where, as here, there is no evidence the court relied on defendant's acquiescence in deciding not to charge the jury on simple assault. Jenkins, supra, 178 N.J. at 359.









10 A-1552-14T2





support a charge on [the] included offense." Maloney, supra, 216

N.J. at 107 (quoting Thomas, supra, 187 N.J. at 131). For the

reasons that follow, we are convinced simple assault is a

lesser-included offense of the second-degree burglary charged in

the indictment and there was a rational basis in the evidence to

support a charge on simple assault.

"[W]hether an offense is an included offense of another

charge requires a comparison of the statutory elements of each

charge." Ibid. (quoting Thomas, supra, 187 N.J. at 129). An

offense is a lesser-included offense "where the proof required

to establish a greater offense is also sufficient to establish

every element of a lesser offense." Thomas, supra, 187 N.J. at

129 (quoting State v. Muniz, 228 N.J. Super. 492, 496 (App. Div.

1988), rev'd on other grounds, 118 N.J. 319 (1990)).

To establish defendant's guilt on the second-degree

burglary charged in count two, the State was required to prove

defendant entered M.P.'s home without a license or privilege to

do so, with the purpose to commit an offense therein, and during

the commission of the crime "purposely, knowingly, or recklessly

inflict[ed] . . . bodily injury on" M.P. N.J.S.A. 2C:18-2(a)(1)

and (b)(1). To prove a simple assault, the State must prove a

defendant "purposely, knowingly or recklessly cause[ed] bodily







11 A-1552-14T2





injury to another."4 N.J.S.A. 2C:12-12(a)(1). Thus, the

infliction of bodily injury elements of the second-degree

offense charged in the indictment are identical to the elements

required to prove a simple assault under N.J.S.A. 2C:12-1(a)(1).

The State acknowledged as much when at trial it requested that

simple assault be charged as a lesser-included offense.

The evidence establishing defendant committed second-degree

burglary also established every element of the offense of simple

assault because the infliction of bodily injury elements of

second-degree burglary charged in the indictment are identical

to the elements required to prove simple assault. Thomas, supra,

187 N.J. at 129. We are therefore satisfied that, based upon the

allegations in the indictment and the evidence presented at

trial, simple assault was a lesser-included offense of the

second-degree burglary charged in count two.

We discern no support for the State's argument that a

different analysis is required under N.J.S.A. 2C:1-8(d)(1)

because the facts showing defendant inflicted bodily injury were

necessary only to elevate the grading of the burglary from a

4 A simple assault may also be committed if a person attempts to cause bodily injury to another. N.J.S.A. 2C:12-1(a)(1). The indictment did not charge that defendant attempted to cause injury to M.P., but instead charged only that defendant inflicted bodily injury on M.P.







12 A-1552-14T2





third-degree to a second-degree offense. "[F]acts [that] will

aggravate the crime of which a defendant is accused and enhance

the punishment to which he will be subject are said to be an

'element' of the offense." State v. Rodriguez, 234 N.J. Super.

298, 304-05 (App. Div.), certif. denied, 117 N.J. 656 (1989);

see also State v. Ramos, 217 N.J. Super. 530, 539-40 (App. Div.)

(finding that when the commission of an offense during the

commission of a second offense raises the degree of the second

offense, the commission of the offense is an element of the

second offense), certif. denied, 108 N.J. 677 (1987).

As charged in the indictment here, infliction of bodily

injury was an element of second-degree burglary, the "offense

charged" in count two of the indictment. N.J.S.A. 2C:1-8(d)(1).

As noted, because the elements of simple assault are identical

to the infliction of bodily injury elements of the second-degree

burglary charged in count two, simple assault is a lesser

included offense of the second-degree burglary charged in the

indictment. N.J.S.A. 2C:1-8(d)(1); Maloney, supra, 216 N.J. at

107.

Our determination that simple assault is a lesser-included

offense does not end the inquiry. We also consider if there was

a rational basis in the evidence to convict defendant of the

lesser-included offense while acquitting him of the second







13 A-1552-14T2





degree burglary charged in the indictment. Thomas, supra, 187

N.J. at 132. A court "shall not charge the jury with respect to

[a lesser] included offense unless there is a rational basis for

a verdict convicting the defendant of the included offense."

N.J.S.A. 2C:1-8(e). The statute requires "not only a rational

basis in the evidence for a jury to convict the defendant of the

included offense but require[es] also a rational basis in the

evidence for a jury to acquit the defendant of the charged

offense before the court may instruct the jury on an uncharged

offense." State v. Brent, 137 N.J. 107, 113-14 (1994). "[S]heer

speculation does not constitute a rational basis." Thomas,

supra, 187 N.J. at 132 (quoting Brent, supra, 137 N.J. at 118).

We are satisfied there was a rational basis supporting a

charge on the lesser-included offense of simple assault. M.P.'s

testimony she was kicked and punched by defendant, and suffered

bruising and scratches as a result, was sufficient to establish

defendant committed a simple assault under N.J.S.A. 2C:12

1(a)(1) and provided a rational basis for the lesser-included

offense charge.

The evidentiary record also provided a rational basis for

an acquittal on the greater charge of second-degree burglary

because there was evidence showing defendant's entry into M.P.'s

apartment may have been authorized. M.P. provided conflicting







14 A-1552-14T2





statements. At trial she testified defendant was not authorized

to enter her apartment on March 5, 2012, and forced his way in

through an unlocked door. She acknowledged on cross-examination,

however, that she previously testified under oath that defendant

"knocked on the door and [she] opened it."

M.P. also testified she attended two parties in Connecticut

with defendant and his and M.P.'s children during the weeks

prior to March 5, 2012, and that on February 26, 2012, she

returned to New Jersey with defendant and the children following

one of the parties. A picture taken at a party nine days prior

to the March 5, 2012 incident shows M.P. kissing defendant on

the cheek. In February 2012, she permitted defendant to enter

her apartment to fix holes he had made in the walls. She was not

asked to explain the circumstances under which the holes were

made, but her testimony demonstrated she had given defendant

permission to enter her home during the weeks prior to the

crimes alleged in the indictment.

We recognize M.P. could deny or revoke authorization for

defendant to enter her apartment at any time. We are satisfied,

however, that her testimony provided a rational basis to acquit

defendant of second-degree burglary. Portions of M.P.'s

testimony support a rational conclusion that defendant's entry

into M.P.'s apartment was authorized, thereby negating an







15 A-1552-14T2





essential element of second-degree burglary, entry without a

license or privilege to do so. N.J.S.A. 2C:18-2(a)(1). The court

therefore erred by failing to give the lesser-included charge

because, although it was not requested by defendant, the "facts

adduced at trial clearly indicate that a jury could convict on

the lesser while acquitting on the greater offense." Maloney,

supra, 216 N.J. at 107 (quoting Thomas, supra, 187 N.J. at 132).

We are satisfied the lesser-included charge directly

concerned a matter that was "fundamental," "essential," and

"substantially material" to the issues at trial. Maloney, supra,

216 N.J. at 104-05 (quoting Green, supra, 86 N.J. at 291). The

failure to give the required charge deprived the jury of the

opportunity to find defendant guilty of simple assault, for

which there was overwhelming evidence, without also finding him

guilty of the second-degree burglary, for which there was

conflicting evidence from M.P. concerning an essential element

of the crime, whether defendant had a license or privilege to

enter M.P.'s apartment. "[A] jury reluctant to acquit [a]

defendant might compromise on a verdict of guilty on the greater

offense." State v. Sloane, 111 N.J. 293, 299 (1988). "Where one

of the elements of the offense charged remains in doubt, but the

defendant is plainly guilty of some offense, the jury is likely

to resolve its doubts in favor of conviction." Ibid. (quoting







16 A-1552-14T2





Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993,

1997-98, 36 L. Ed. 2d 844, 850 (1973)).

"Appropriate and proper charges to a jury are essential for

a fair trial." Maloney, supra, 216 N.J. at 104 (quoting Green,

supra, 86 N.J. at 287). The trial court erred here by failing to

charge the jury on simple assault as a lesser-included offense

of second-degree burglary as charged in the indictment. We are

therefore constrained to reverse defendant's conviction because

we are convinced the court's failure to charge the lesser

included offense of simple assault "was clearly capable of

producing an unjust result such that a reasonable doubt is

raised as to whether the error led the jury to a result it

otherwise might not have reached." Jenkins, supra, 178 N.J. at

360-61 (quoting Brims, supra, 168 N.J. at 306).

III.

We have also determined there is a separate but equally

dipositive basis requiring a reversal of defendant's conviction;

the incorrect admission of prior bad acts evidence. Defendant

argues the court erred by permitting testimony under N.J.R.E.

404(b) concerning three events that were not the subject of the

charges in the indictment. Defendant challenges the admission of

M.P.'s testimony concerning a 2010 incident of domestic violence

between her and defendant, and describing defendant's threat







17 A-1552-14T2





referencing Emily. Defendant also contends the officer's

testimony about his receipt of a report that an unauthorized

person attempted to pick up M.P.'s child from daycare was

improperly admitted. Defendant also argues the court's limiting

instruction regarding the jury's consideration of N.J.R.E.

404(b) evidence was inadequate.

The decision to admit evidence under N.J.R.E. 404(b) is

reviewed for an abuse of discretion. State v. Rose, 206 N.J.

141, 157 (2011). A court's discretion to admit evidence "is not

unbounded. Rather, it is guided by legal principles governing

the admissibility of evidence which have been crafted to assure

that jurors receive relevant and reliable evidence to permit

them to perform their fact-finding function and that all parties

receive a fair trial." State v. J.M., 225 N.J. 146, 157 (2016)

(quoting State v. Willis, 225 N.J. 85, 96 (2016)). If a

defendant did not object to the admission of other-crimes

evidence during the trial, the appellate court reviews its

admission under the plain error standard and reverses the

verdict only "if the error is 'clearly capable of producing an

unjust result.'" Rose, supra, 206 N.J. at 157 (quoting R. 2:10

2).

N.J.R.E. 404(b) permits the admission of other crimes or

wrongs evidence and provides:







18 A-1552-14T2





Except as otherwise provided by Rule 608(b), 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. 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.



[N.J.R.E. 404(b).]



Such evidence must be admitted with caution because it "'has a

unique tendency' to prejudice a jury," J.M., supra, 225 N.J. at

158 (quoting Willis, supra, 225 N.J. at 97), and "has the effect

of suggesting to a jury that a defendant has a propensity to

commit crimes, and therefore, that it is 'more probable that he

committed the crime for which he is on trial.'" Ibid. (quoting

Willis, supra, 225 N.J. at 97) (internal citations omitted).

Our Supreme Court has established a four-part test for 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. 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.









19 A-1552-14T2





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



The party seeking admission of such evidence must "demonstrate[]

the necessity of the other-crime evidence to prove a genuine

fact in issue[,] . . . the court [must] carefully balance[] the

probative value of the evidence against the possible undue

prejudice it may create, [and] the court must instruct the jury

on the limited use of the evidence." J.M., supra, 225 N.J. at

158 (quoting Cofield, supra, 127 N.J. at 340-41).

Here, defendant first challenges the court's admission of

M.P.'s testimony concerning a 2010 incident which was strikingly

similar to the 2014 incident that was the subject of the charges

in the indictment. Defense counsel objected and, after

conducting a N.J.R.E. 104 hearing, the court permitted M.P. to

testify before the jury that in 2010 she was alone in her

Connecticut apartment, defendant made an unauthorized entry

through a door that had been locked, and defendant threw her on

a bed, placed a pillow over her face preventing her from

breathing, and then departed.

The prosecutor argued the purpose of the evidence was to

establish an absence of mistake, that "[t]his [was not]

something out of the ordinary or out of character for him." She

also claimed the evidence demonstrated defendant's plan, motive,







20 A-1552-14T2





and opportunity, arguing "[t]his is who he is. This is his

character and it should be admitted . . . ."

The judge's analysis of the evidence under Cofield was

incomplete and in error. The judge found the evidence was

relevant to whether defendant committed the crimes charged in

the indictment, but did not identify how the evidence was

"relevant to a material issue that [was] genuinely disputed,"

id. at 160 (quoting State v. Covell, 157 N.J. 554, 564-65

(1999)), or served any of the permissible purposes of evidence

admissible under N.J.R.E. 404(b). The judge ultimately chose to

charge the jury that the evidence could be used to determine

defendant's intent, absence of mistake, and motive, but

defendant's state of mind was "not a 'genuinely contested' issue

in this case." Id. at 160 (quoting Willis, supra, 225 N.J. at

98-99). The judge also instructed the jury that the evidence

could be used as proof of defendant's plan, but it was

inadmissible for that purpose because it was insufficient to

"establish the existence of a larger continuing plan of which

the crime on trial [was] a part[.]"5 Ibid. (quoting State v.

Stevens, 115 N.J. 289, 306 (1989)).

5 We reject any contention that the M.P.'s testimony concerning the 2010 incident was material to the stalking charge in count three. The indictment alleged defendant engaged in stalking only (continued)







21 A-1552-14T2





Based upon our review of the record, we discern no

permissible purpose under N.J.R.E. 404(b) for the admission of

M.P.'s testimony concerning the 2010 incident. In addition, the

testimony was highly prejudicial to defendant because it

described a nearly identical incident to the one which was the

subject of the indictment and detailed similar facts of critical

importance in defendant's trial: whether defendant was

authorized to enter M.P.'s apartment or committed a burglary by

entering without her authorization. Without any probative value

under N.J.R.E. 404(b), the admission of the evidence could only

support the impermissible inference that defendant acted in

conformity with his prior conduct by committing the crimes

charged in the indictment.

The prejudice to defendant was further exacerbated because

M.P.'s testimony about defendant's alleged prior bad acts under

N.J.R.E. 404(b) was not limited to defendant's conduct. See

State v. Gillispie, 208 N.J. 59, 92 (2011) (finding "other

crimes evidence must be appropriately sanitized"). The court

instead permitted M.P. to testify she could not stay in

Connecticut because in her opinion defendant's conduct was not

(continued) during a course of conduct that occurred on May 5, 2012, in Woodbury.







22 A-1552-14T2





going to stop, she fled Connecticut immediately following the

incident to get out as fast as possible, and her daughter was

frightened by the incident.

We are therefore convinced the court erred by permitting

M.P. to testify concerning the 2010 incident under N.J.R.E.

404(b). Defendant objected to the admission of the evidence so

we consider its admission under the harmless error rule. State

v. Macon, 57 N.J. 325, 338 (1971) (finding error is harmless

unless there is a reasonable doubt that the error contributed to

the verdict). Because the evidence had no probative value and

was otherwise highly prejudicial to defendant, a reversal is

required because there exists a reasonable doubt the court's

error in admitting the evidence contributed to the verdict.6

IV.

Because the matter will be retried, we address defendant's

other arguments for the guidance of the trial court. We reject

defendant's contention the court erred by permitting M.P. to

testify about defendant's threatening statements concerning what 6 The judge's general instructions on the permissible use of N.J.R.E. 404(b) evidence did not cure the error in admitting the testimony or eliminate the prejudice to defendant. The court could not have provided the jury with a correct instruction on the use of M.P.'s testimony concerning the 2010 incident because the testimony was not admissible under N.J.R.E. 404(b) in the first instance.









23 A-1552-14T2





he had done to Emily. We disagree with defendant's assertion

the testimony constituted evidence of prior bad acts under

N.J.R.E. 404(b).

"[E]vidence that is intrinsic to the charged crime is

exempt from the strictures of [N.J.R.E.] 404(b) even if it

constitutes evidence of uncharged misconduct that would normally

fall under [N.J.R.E.] 404(b) because it is not evidence of other

crimes, wrongs, or acts." Rose, supra, 206 N.J. at 177 (citation

and internal quotation marks omitted). One category of

intrinsic evidence "applies to evidence that 'directly proves'

the charged offense." State v. Brockington, 439 N.J. Super. 311,

327 (App. Div. 2015) (quoting Rose, supra, 206 N.J. at 180).

"The operative factor is whether the evidence has probative

value as to the charged offense." Ibid.

M.P.'s testimony concerning defendant's reference to what

he had done to Emily falls within the category of intrinsic

evidence that directly proves the offense charged. M.P.'s

testimony was that defendant referred to what he had done to

Emily as the means to threaten M.P. The testimony had probative

value to the offense of terroristic threats and stalking with

which defendant was charged in the indictment.

Defendant also contends the admission of Digiambattista's

testimony concerning the unidentified person who reportedly







24 A-1552-14T2





attempted to pick up M.P.'s child at daycare violated N.J.R.E.

404(b). We need not determine if the testimony constituted the

admission of other crimes or bad acts evidence under N.J.R.E.

404(b) because the officer's testimony about the report he

received should not have been admitted. It constituted

inadmissible hearsay. N.J.R.E. 802.7 See Neno v. Clinton, 167

N.J. 573, 581 (2001) (finding statements made by witnesses to an

officer were "undoubtedly hearsay").

Based upon the trial record, we also agree with defendant's

assertion that Digiambattista's testimony that M.P. reported to

him she was assaulted by defendant, and the nurse's testimony

concerning M.P.'s reports about defendant's alleged assaults,

constituted inadmissible hearsay.8 N.J.R.E. 802. There is

nothing in the evidentiary record supporting the admission of

7 Defendant did not object to the testimony, but because we reverse defendant's convictions on other grounds, we need not decide whether admission of the Digiambattista's testimony constituted plain error. During the retrial, however, the officer should not be permitted to testify regarding the report unless it is demonstrated the report is admissible under an exception to the hearsay rule.



8 The officer's testimony violated the hearsay rule because he provided specific details about the crime relayed to him by M.P. State v. Luna, 193 N.J. 202, 217 (2007). The nurse's testimony impermissibly described M.P.'s statements that were not relevant to the provision of medical treatment. State v. McBride, 213 N.J. Super. 255, 273 (App. Div. 1986).

the testimony under any of the exceptions to the hearsay rule.

At the retrial, the testimony should be excluded unless the

State establishes the proper admission of the testimony under an

applicable exception to the hearsay rule.