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Date: 12-06-2018

Case Style:

State of New Jersey v. Carlos B. Green

Case Number: 080274

Judge: Lee Solomon


Plaintiff's Attorney: Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Stephen A. Pogany, of counsel and on the briefs

Defendant's Attorney: Joseph E. Krakora, Public Defender, attorney; Molly O’Donnell Meng, of counsel and on the briefs


On a late December night in 2014, defendant Carlos B. Green (Green)
struck and killed Billy Ray Dudley (Dudley), who was lying in the road. A
toxicology lab determined Green’s blood alcohol concentration (BAC) to be
0.210% at the time of the accident. Pursuant to N.J.S.A. 39:4-50, a person

who operates a motor vehicle with a BAC of 0.08% or more is guilty of
driving while intoxicated.
Green had two prior DWI convictions in 1998 and 2009, for which his
sentences each required completion of an educational course at the Intoxicated
Driving Resource Center (IDRC). The IDRC conducts a post-conviction
intervention program for those convicted of an alcohol or drug-related traffic
offense. The program is designed to educate participants about alcohol and its
effects on motor vehicle safety. At the IDRC, participants attend a series of
educational sessions and discussions in order to successfully complete the
As a result of Dudley’s death, Green was charged in a grand jury
indictment with first-degree vehicular homicide while intoxicated and within
1,000 feet of a school, contrary to N.J.S.A. 2C:11-5(b)(3)(a). Before trial, the
State moved in limine to introduce Green’s two prior DWI convictions, which
the State argued were relevant to the issue of recklessness. According to the
State, the prior convictions demonstrated that Green “had knowledge of the
substantial and unjustifiable risks associated with driving while intoxicated.”
The trial court denied the State’s motion. Applying the factors
established by this Court in State v. Cofield, 127 N.J. 328, 338 (1992), the trial
judge ruled that the evidence was unduly prejudicial because a jury might use

the prior convictions as evidence that Green acted in conformity with that
behavior in this instance. Quoting United States v. Rutherford, 54 F.3d 370,
376 (7th Cir. 1995), the court noted that “[a]ny drunk driver who takes to the
road should know he runs a risk of injuring another person.” The court also
ruled that the evidence was cumulative because the State had a toxicology
report indicating that Green had a BAC of 0.210% at the time of the incident.
Therefore, the State did not need to rely on defendant’s prior convictions to
establish recklessness.
The Appellate Division granted the State’s motion for leave to file an
interlocutory appeal. On appeal, the State primarily relied on State v. Bakka,
176 N.J. 533 (2003), for the proposition that prior unsafe conduct, like driving
while intoxicated, can be highly probative of recklessness. The State also
cited decisions from other jurisdictions that admit evidence of prior DWI
convictions to establish recklessness. Finally, the State argued that because
Green was instructed at the IDRC about the dangers of driving while
intoxicated, evidence of his convictions would tend to prove his awareness and
conscious disregard of the risks of driving while intoxicated when he chose to
drink and drive again.
In response, Green argued that the motion judge correctly applied the
Cofield factors to exclude his prior convictions, which were too remote and

unduly prejudicial. Green stressed that other than his intoxication, there was
no indication that he was operating his vehicle recklessly -- Green was not
swerving or speeding, he had his lights on, and Dudley was lying in the
roadway in the dark. Finally, Green contended that the State could prove his
intoxication with less inflammatory evidence, such as the toxicology results
and police testimony.
The Appellate Division affirmed the trial court, citing this Court’s
acknowledgment that “[d]riving while intoxicated may alone satisfy the
recklessness required by the death by auto statute.” State v. Green, 452 N.J.
Super. 323, 325-26 (App. Div. 2017) (quoting State v. Jamerson, 153 N.J. 318,
335 (1998)). The panel found that Cofield requires trial courts to “engage in a
‘careful and pragmatic evaluation’ that focuses on ‘the specific context in
which [other-crimes] evidence is offered’” to determine admissibility. Id. at
326-27 (quoting State v. Stevens, 115 N.J. 289, 303 (1989)). Applying the
Cofield factors, the panel concluded that the trial judge did not abuse his
discretion in excluding Green’s two prior DWI convictions. Id. at 328-29.
The State sought leave to appeal, which we granted. 232 N.J. 97 (2018).
We also granted amicus curiae status to the New Jersey Attorney General.


The parties’ arguments here mirror those raised in the Appellate
Division. In addition, the State urges this Court to join those jurisdictions that
admit evidence of prior bad acts for the purpose of establishing knowledge,
malice, or another state of mind. The State argues that this Court should
therefore hold that Green’s prior DWI convictions are admissible for the
limited purpose of establishing his knowledge and recklessness. The State also
contends that there is no reason to believe that the jury would use this evidence
for an improper purpose, particularly because trial courts can alleviate any
prejudicial effect by giving a limiting instruction.
The Attorney General’s arguments largely echo the arguments set forth
by the State. Additionally, the Attorney General asks this Court to revisit
Cofield’s Rule 404(b) analysis, arguing that the Cofield Court intended to
“simply incorporate” Rule 403 into the other-crimes test. According to the
Attorney General, the fourth prong has “somehow morphed” into a more
stringent Rule 404(b) analysis. The Attorney General thus urges this Court to
reevaluate the “dramatic shifting” of Cofield’s fourth prong, particularly
because this shift occurred “without the issue being litigated.”
Green asks this Court to “reject the State’s invitation to follow other
jurisdictions with less-protective rules of evidence.” Green also argues that

the State’s reliance on Bakka is misplaced, as the defendant in Bakka drove
with a suspended license and was charged with aggravated manslaughter,
which requires proof of a higher level of recklessness than does vehicular
homicide. Green further contends that even if Bakka is applicable, the trial
court and Appellate Division decisions were entirely consistent with Bakka’s
mandate to apply the Cofield factors on a case-by-case basis.
We begin our discussion by acknowledging that the admissibility of
evidence at trial is left to “the sound discretion of the trial court.” State v.
Willis, 225 N.J. 85, 96 (2016). A trial court’s evidentiary ruling is therefore
reviewed on appeal for abuse of discretion. State v. Rose, 206 N.J. 141, 157
(2011). In addition, sensitive admissibility rulings regarding other-crimes
evidence made pursuant to Rule 404(b) are reversed “[o]nly where there is a
clear error of judgment.” Id. at 157-58 (alteration in original) (quoting State v.
Barden, 195 N.J. 375, 391 (2008)). However, that deferential approach is
inappropriate when the trial court failed to properly apply Rule 404(b) to the
evidence at trial. Id. at 158. When that occurs, “an appellate court may
engage in its own ‘plenary review’ to determine . . . admissibility.” Ibid.
(quoting Barden, 195 N.J. at 391). In other words, appellate review is de novo

when the court should have, but did not perform a Cofield analysis. State v.
Reddish, 181 N.J. 553, 609 (2004).
This appeal focuses on the admission of other-crimes evidence --
specifically, Green’s two prior DWI convictions and evidence of his
subsequent participation in IDRC courses. Rule 404(b) bars “evidence of
other crimes, wrongs, or acts” when used “to show that [a] person acted in
conformity therewith.” N.J.R.E. 404(b). However, evidence of prior “crimes,
wrongs, or acts” may be used to show “intent, . . . knowledge, . . . or absence
of mistake or accident.” Id. Because evidence of a defendant’s other crimes
“has a unique tendency” to prejudice the jury, Reddish, 181 N.J. at 608
(quoting Stevens, 115 N.J. at 302), other-crimes evidence proffered under Rule
404(b) “must pass [a] rigorous test,” State v. Garrison, 228 N.J. 182, 194
(2017) (alteration in original) (quoting State v. Kemp, 195 N.J. 136, 159
In Cofield, we adopted a four-part test to determine the admissibility of
other-crimes 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.

[127 N.J. at 338.]
Trial courts must apply that test on a case-by-case basis “in order to
avoid the over-use of extrinsic evidence of other crimes or wrongs.” Ibid. The
four-part Cofield test governing the admissibility of other-crimes evidence is a
well-settled feature of New Jersey’s evidence jurisprudence.
To satisfy the first prong of the Cofield test, the “proffered evidence
must be ‘relevant to a material issue genuinely in dispute.’” State v. Gillispie,
208 N.J. 59, 86 (2011) (quoting State v. Darby, 174 N.J. 509, 519 (2002)).
Rule 401 defines relevant evidence as any evidence that has “a tendency in
reason to prove or disprove any fact of consequence to the determination of the
action.” Darby, 174 N.J. at 519 (quoting N.J.R.E. 401). In determining
relevance, “the inquiry should focus on ‘the logical connection between the
proffered evidence and a fact in issue.’” Ibid. (quoting State v. Hutchins, 241
N.J. Super. 353, 358 (App. Div. 1990)). The required logical connection has
been satisfied “if the evidence makes a desired inference more probable than it

would be if the evidence were not admitted.” Garrison, 228 N.J. at 195
(quoting State v. Williams, 190 N.J. 114, 123 (2007)).
Here, as a result of his DWI convictions, Green was required to take
courses at the IDRC, where he learned of the dangers of driving while
intoxicated. As such, the proffered evidence supports the State’s contention
that Green knew of and consciously disregarded the risks of driving while
intoxicated. Thus, Green’s previous DWI convictions and compulsory IDRC
participation were relevant to a material issue at trial, namely Green’s
The second prong requires that the “other acts” be “similar in kind and
reasonably close in time to the offense charged.” Cofield, 127 N.J. at 338.
Application of this prong is “limited to cases that replicate the circumstances
in Cofield.” Williams, 190 N.J. at 131. Although relevant in Cofield, this
Court has recognized that similarity and temporality are not applicable in
every case. Rose, 206 N.J. at 163. As a result, Cofield’s second prong may be
eliminated where it “serves no beneficial purpose.” Williams, 190 N.J. at 131.
We find that to be the case here.


Under the third Cofield prong, the prosecution must establish that the
other crime “actually happened by ‘clear and convincing’ evidence.” Rose,
206 N.J. at 160 (quoting Cofield, 127 N.J. at 338). Here, the State offered
judgments of conviction as evidence of Green’s prior DWI’s. Therefore, the
evidence satisfies Cofield’s third prong.
“Because of the damaging nature of [other crimes] evidence,” the fourth
Cofield prong -- “[t]he probative value of the evidence must not be outweighed
by its apparent prejudice,” 127 N.J. at 338 -- is “the most difficult to
overcome.” Rose, 206 N.J. at 160 (citing Barden, 195 N.J. at 389). That
prong requires an inquiry distinct from the familiar balancing required under
N.J.R.E. 403: the trial court must determine only whether the probative value
of such evidence is outweighed by its potential for undue prejudice, Barden,
195 N.J. at 389, not whether it is substantially outweighed by that potential as
in the application of Rule 403.1 “[I]f other less prejudicial evidence may be
presented to establish the same issue, the balance in the weighing process will

1 The State and the Attorney General cite to authority from other federal and state jurisdictions and ask us to adopt a less stringent standard for analyzing Cofield’s fourth prong. We decline the invitation to alter New Jersey’s wellsettled jurisprudence in this regard.

tip in favor of exclusion.” Rose, 206 N.J. at 161 (quoting Barden, 195 N.J. at
392). Therefore, Rule 404(b) is viewed “as a rule of exclusion rather than a
rule of inclusion.” Reddish, 181 N.J. at 609 (quoting Darby, 174 N.J. at 520).
Nevertheless, some types of evidence, such as evidence of motive or intent,
“require a very strong showing of prejudice to justify exclusion.” Garrison,
228 N.J. at 197 (quoting State v. Skinner, 218 N.J. 496, 516 (2014)).
To reduce “the inherent prejudice in the admission of other-crimes
evidence,” trial courts are required “to sanitize the evidence when
appropriate,” Rose, 206 N.J. at 161 (quoting Barden, 195 N.J. at 390), by
allowing the introduction of only the degree and date of the offense, State v.
Brunson, 132 N.J. 377, 391 (1993).2 To further minimize the inherent
prejudice in the admission of other-crimes evidence, a carefully crafted
limiting instruction “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
[other crimes], both when the evidence is first presented and again as part of
the final jury charge.” Rose, 206 N.J. at 161 (citing Barden, 195 N.J. at 390).
However, the inherently prejudicial nature of other-crimes evidence “casts

2 Brunson modified this Court’s decision in State v. Sands, 76 N.J. 127, 144 (1978), in which we held that the admissibility of a prior conviction to impeach the credibility of a testifying criminal defendant is a decision that rests within the sound discretion of the trial judge.

doubt on a jury’s ability to follow even the most precise limiting instruction.”
Reddish, 181 N.J. at 611 (quoting State v. Fortin, 162 N.J. 517, 534 (2000)).
The crux of this case is Cofield’s fourth prong. Green’s two prior DWI
convictions and subsequent IDRC participation are probative of his mental
state when he committed the charged vehicular homicide. Specifically, Green
had twice been through the criminal justice process and therefore was
unquestionably aware that driving while intoxicated is an impermissible and
punishable offense. As a result of his convictions, Green was sentenced to
attend courses at the IDRC where he learned of the risks and dangers of
driving while intoxicated. Green’s IDRC participation likely gave him a
heightened awareness of those risks and dangers. Therefore, the other-crimes
evidence tends to show that Green was aware of, but consciously disregarded,
the risks of driving while intoxicated, a mental state that is a material element
of vehicular homicide.
Nevertheless, other considerations diminish the probative value of the
evidence at issue. For example, Green’s prior DWI convictions were from
1998 and 2009 -- many years before this fatal accident. The lapse of time has
an eroding effect on the instructive impact of the DWI convictions and ensuing
attendance at the IDRC.

Turning to prejudice, admission of the prior DWI convictions suggests to
the jury that Green acted in conformity with his prior behavior. The
circumstances surrounding this vehicular homicide prosecution indicate that,
although intoxicated, Green was not speeding, swerving, or otherwise
committing any traffic infractions. Therefore, the motion court could
reasonably conclude that admission of Green’s prior DWI convictions would
confuse or risk misleading the jury, causing it to convict Green based solely on
his propensity to drive while intoxicated.
The potential for jury confusion is especially high when, as here, proof
of causation is tenuous. While Green was indeed intoxicated on the night of
the accident, Dudley was lying in the middle of a dark roadway when he was
struck by Green’s vehicle. Even with the most carefully crafted limiting
instruction, admission of Green’s two prior DWI convictions could result in
the jury’s conflating recklessness and causation.
Additionally, the State possesses a less inflammatory source of probative
evidence -- Green’s BAC of 0.210% at the time of the incident. “Proof that
the defendant was driving while intoxicated . . . shall give rise to an inference
that the defendant was driving recklessly.” N.J.S.A. 2C:11-5(a). In the drunk
driving context, “[i]ntoxication in combination with other evidence or standing
alone may satisfy the recklessness element.” State v. Stanton, 176 N.J. 75, 84

(2003). Although N.J.S.A. 2C:11-5(a) does not mandate that the jury accept
the inference of recklessness, the jury may infer recklessness based solely on
Green’s BAC. Therefore, the State has at its disposal probative and far less
inflammatory evidence of Green’s reckless state of mind.
In light of the circumstances present in this case, the risk that a jury
would convict Green based on his propensity to drive while intoxicated
outweighs the probative value of his more than five-year-old DWI convictions.
Therefore, balancing the probative value against the prejudice of admitting
defendant’s prior DWI convictions and IDRC program participation under
Rule 404(b) favors exclusion of the evidence.
Our independent analysis leads to the conclusion that Green’s prior DWI
convictions are inadmissible under Rule 404(b). In that respect, we affirm the
judgment of the Appellate Division.
We acknowledge that the State, relying on Bakka, urges a different
conclusion. In Bakka, the defendant crashed his girlfriend’s car while
intoxicated, killing a passenger. 176 N.J. at 539. Prior to trial, the court
granted the State’s motion in limine, allowing it to introduce evidence that the
defendant was driving with a revoked license at the time of the accident. Id. at
543. The jury thereafter convicted the defendant of first-degree aggravated

manslaughter and second-degree vehicular homicide. Ibid. The Appellate
Division found that the trial court improperly admitted the evidence of
revocation and vacated the defendant’s convictions. Id. at 544.
This Court agreed with the Appellate Division that the “mere fact that a
defendant is an unlicensed driver does not by itself suggest an awareness of
risk.” Id. at 546. We thus agreed that its admission was error but concluded
that the error was harmless under the circumstances of that case and reinstated
the defendant’s convictions. Id. at 550-51.
Although we found error, we acknowledged that “the reasons for that
revocation may be probative of recklessness when defendant again engages in
unsafe conduct identical or similar to that which resulted in the revocation.”
Id. at 547. In other words, the “revocation may serve as an additional
‘warning’ to the defendant of the risks to others when the proscribed conduct
is repeated and therefore may be probative of recklessness.” Ibid.
Likewise, we hold here that the trial court and Appellate Division were
correct to exclude defendant’s prior DWI convictions. However, as we did in
the circumstances of Bakka, we recognize that there may be a situation in
which prior DWI convictions of a defendant charged with vehicular homicide
while intoxicated would be admissible under Rule 404(b) as evidence of
recklessness, despite the statutory inference of recklessness arising from

evidence that the defendant drove with a BAC over 0.08%. The probative
value of prior DWI convictions close in time to the incident charged may, only
in the rare case, outweigh the potential for undue prejudice. We therefore
encourage trial judges to perform a thorough Cofield analysis and not presume
a per se exclusion of such evidence. The admissibility of Rule 404(b)
evidence must be considered on a case-by-case basis by analyzing the evidence
proffered and the circumstances of the case.

Outcome: For the reasons set forth above, we affirm the judgment of the Appellate

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