SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2556-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN BASKER,

Defendant-Appellant.

_______________________

Submitted March 24, 2021 – Decided May 24, 2021

Before Judges Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 17-09-2586.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Candace Caruthers, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Caroline C. Galda, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2556-19

Tried by a jury in November 2018, defendant Marvin Basker was found 

guilty of three counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a),

and two lesser-included counts of disorderly persons simple assault, N.J.S.A. 

2C:12-1(a)(1) and -1(a)(3). He was sentenced to an aggregate ten-year prison 

term with a five-year parole disqualifier. He contends on appeal that his 

decision not to testify was due to the trial court's error in admitting into evidence 

his remote convictions from 1994 to 2003, contrary to N.J.R.E. 609(b)(1); thus, 

an unjust result occurred. We agree and reverse his convictions. Accordingly,

we do not address his excessive sentence contentions. 

I.

A grand jury indicted defendant with two counts of first-degree robbery, 

N.J.S.A. 2C:15-1; one count of second-degree robbery, N.J.S.A. 2C:15-1; three 

counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and three counts 

of third-degree criminal restraint, N.J.S.A. 2C:13-2(a) and -2(b). The charges 

arose out of a July 2017 incident that occurred at a neighborhood corner store in 

Newark, which we detail below. 
3 A-2556-19

A.

On November 7, 2018, a week prior to trial, a Sands/Brunson1 hearing was 

held to adjudicate the State's motion to admit defendant's prior convictions of 

third-degree theft and third-degree unlawful possession of a firearm in 1994; 

third-degree receipt of stolen property in 1994; second-degree eluding in 1998; 

second-degree robbery in 2000; third-degree controlled dangerous substance 

(CDS) possession with intent to distribute in 2002; first-degree robbery in 2003; 

and second-degree aggravated arson and second-degree conspiracy to commit 

aggravated arson in June 2007. 

Defense counsel did not object to the admission of the convictions but 

contended the arson and robbery offenses should be sanitized. The court granted 

the State's motion, reasoning:

[Defendant] has a substantial criminal history. And 

certainly[,] under our State v. Sands, not only the recent 

conviction, the most recent [being] 2007, which is 

within [ten] years of the commission of the date, his 

release from that -- he wouldn’t have been released 

until 2010, so that certainly -- the incident in question 

is July 2017. It’s certainly within [ten] years. 

But, also, when somebody has continued to 

violate our laws . . . the [c]ourt has to consider that. So, 

certainly, in light of that, all [of] defendant's 

1

 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993). 
4 A-2556-19

convictions will be subject to impeaching defendant if 

he testifies, his credibility. 

However, I will order that any of the convictions 

be sanitized because there are [other] robbery 

convictions . . . . So should . . . defendant take the 

stand, the jurors will be able to hear the indictment 

number, the date of the sentencing, as well as the 

degrees of the crimes and the sentences, but not the 

actual crimes for which he was convicted. 

In addition, the court granted the State's motion to bar the defense from 

referencing the defendant’s mental health because defense counsel had not 

provided any medical documentation or expert support for such a claim. 

B.

The State presented the following trial evidence. On July 19, 2017, at 

approximately 8:58 a.m., defendant entered a Newark corner store owned by 

mother and son, E.G. (Edna)2 and C.G. (Carl). At that moment, Carl was 

approaching the store's exit with his daughter, K.G. (Kim). Defendant, holding 

an object wrapped in a black plastic bag simulating a gun, ordered Carl to lift 

up his shirt and turn over his gun, or be shot. Carl lifted his shirt, telling 

defendant he did not have a gun. Defendant then patted down Carl and searched

his pockets, stating several times he would be shot if he moved. 

2

 We use initials and pseudonyms to protect the victims' identity. 
5 A-2556-19

"Hear[ing] a commotion outside," Edna came out from a back office to 

enter the store. She saw Kim near the front door, with defendant pressing an 

object wrapped in a plastic bag into Carl's side and frisking him. Defendant 

approached Edna, ordering her and Carl not to move. Defendant then grabbed 

Edna's arm, pointing the object at her side, demanding that she give him her 

guns. She replied there were no guns in the store. 

Defendant next told Carl to hand over his cell phone. After Carl complied, 

defendant asked him for the phone passcode and tried to make a call. Defendant 

also tried to make a phone call using the store's fax machine. When Edna asked 

defendant why he was doing this, he responded that he wanted to call the police 

and that they should give him their guns. Defendant and Edna proceeded to the 

back office where he told her to dial several numbers, including 9-1-1, 6-1-1, 

and 2-1-1. She obeyed and handed defendant the phone several times, upon 

which he repeatedly hung up by pressing the off button. On one call, Edna stated 

that someone answered, "this is not [the] Newark Police Department."

Moments later, Newark Police Officer Kiyata Derrick entered the store 

when people–including Kim–outside the store alerted her to the ongoing 

situation. Seeing Carl and Edna inside the store with defendant holding an

object at her side, Derrick ordered defendant to drop what she thought was a 
6 A-2556-19

weapon. Defendant responded that he did not have one and dropped the object,

revealing a plastic ginger-ale bottle wrapped in the plastic bag. Defendant 

followed Derrick's commands, and he was searched and arrested. At no point 

during the incident did defendant demand money or merchandise. 

After the court advised defendant of his right to testify and the implication 

of his decision, defendant declined to testify. Significantly, the court reminded 

defendant that based on its pre-trial ruling, should he testify, the State "would 

be permitted to disclose to the jury details about [his] prior criminal record . . . 

including the degree of the convictions, as well as any sentences." 

Defendant did not present any witnesses in his defense. Defense counsel 

argued to the jury that defendant’s "bizarre and baffling behavior" was not an 

attempt to harm the store owners and Kim, but "a call for help," though "he went 

about it the wrong way."

The jury acquitted defendant of the robbery and criminal restraint offenses 

but found him guilty of three counts of third-degree terroristic threats and two 

lesser-included counts of disorderly persons simple assault.

3 The court 

sentenced him to concurrent five-year prison terms for two counts of terroristic 

3

 Prior to trial, the State voluntarily dismissed one of the second-degree robbery 

charges. 
7 A-2556-19

threats, with a two-and-a-half-year period of parole ineligibility; a consecutive 

five-year prison term for one count of terroristic threats, with a two-and-a-halfyear period of parole ineligibility; and concurrent six-month prison terms for 

two counts of simple assault. Defendant's aggregate prison term was ten years 

with a five-year parole disqualifier.

Before us, defendant argues 

POINT I 

THE TRIAL COURT'S ERRONEOUS DECISION 

THAT DEFENDANT'S DECADES-OLD PRIOR 

CONVICTIONS WERE ADMISSIBLE FOR 

IMPEACHMENT REQUIRES REVERSAL. 

POINT II

DEFENDANT'S SENTENCE IS EXCESSIVE 

BECAUSE THE COURT INCORRECTLY 

CONDUCTED ITS YARBOUGH[4] ANALYSIS AND 

ERRED IN ITS FINDING AND WEIGHING OF THE 

MITIGATING FACTORS. 

A. THE IMPOSITION OF CONSECUTIVE 

SENTENCES WAS INCORRECT BECAUSE 

THE COURT IMPROPERLY EVALUATED 

THE YARBOUGH GUIDELINES.

B. THE COURT ERRED IN ITS FINDING AND 

WEIGHING OF THE MITIGATING FACTORS.

4

 State v. Yarbough, 100 N.J. 627 (1985). 
8 A-2556-19

II.

"[T]he decision of whether a prior conviction may be admitted to impeach 

a witness 'rests within the sound discretion of the trial judge. . . .'" State v. 

Harris, 209 N.J. 431, 442 (2012) (quoting State v. Whitehead, 104 N.J. 353, 358 

(1986)). An abuse of discretion occurs where "there has been a clear error of 

judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 

148 N.J. 469, 484 (1997)). "[O]rdinarily evidence of prior convictions should 

be admitted and the burden of proof to justify exclusion rests on the defendant." 

Whitehead, 104 N.J. at 358 (quoting Sands, 76 N.J. at 144 (1978)). "[P]riorconviction evidence has probative value for impeachment purposes, as assessed 

by the trial court. . . ." State v. T.J.M., 220 N.J. 220, 235 (2015). 

That said, "N.J.R.E. 609(b)(1) creates a presumption that a conviction 

more remote than ten years is inadmissible for impeachment purposes, unless 

the State carries the burden of proving 'that its probative value outweighs its 

prejudicial effect.'" State v. R.J.M., 453 N.J. Super. 261, 266-67 (2018) (quoting 

N.J.R.E. 609(b)(1)). "[T]he court may consider"

(i) whether there are intervening convictions for crimes 

or offenses, and if so, the number, nature, and 

seriousness of those crimes or offenses,

(ii) whether the conviction involved a crime of 

dishonesty, lack of veracity or fraud,
9 A-2556-19

(iii) how remote the conviction is in time,

(iv) the seriousness of the crime.

[N.J.R.E. 609(b)(2)(i) to (iv).]

"However, making findings as to those four factors is not enough. The 

court must then engage in the weighing process under (b)(1), to determine 

whether the State has carried its burden of proving that evidence of the remote 

conviction would not be more prejudicial than probative." R.J.M., 453 N.J. 

Super. at 270, (citing N.J.R.E. 609(b)(1)). "Thus, N.J.R.E. 609(b)(1) 

encompasses a more stringent admissibility standard, when more than ten years 

have passed since the 'conviction' . . . than N.J.R.E. 609(a), applicable when ten 

years or less have passed." State v. Hedgespeth, 464 N.J. Super. 421, 431 (App. 

Div. 2020). 

Defendant claims he did not testify because the court's admission of his 

remote convictions committed from 1994 to 2002 was done without conducting 

the proper analysis under N.J.R.E. 609(b).5

 Thus, he could not support the 

theory argued by his counsel that his behavior was "off" because he was not 

trying to harm anyone but was seeking help from the police and wanted Edna 

5

 Defendant's merits brief concedes that the 2007 second-degree convictions for 

aggravated arson and conspiracy to commit aggravated arson were not remote 

and, thus, admissible. 
10 A-2556-19

and Carl's guns to prevent from being harmed. Without relating his mental state 

to the jury, defendant asserts the court's evidentiary error prejudiced him. 

Because defendant did not challenge the admission of convictions, he 

must show that the court's decision was "plain error clearly capable of producing 

an unjust result." State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. 

Afanador, 151 N.J. 41, 54 (1997)); R. 2:10-2. The State concedes that admission 

of convictions from 1994 to 2002 was error but relying on Hedgespeth, 464 N.J. 

Super. at 437 (citing Rule 2:10-2), argues that the error was harmless because 

even if defendant had testified about the "episode" he was having, the jury would 

not have reached a different result due to the State's strong evidence and the 

inability of defendant to present any evidence of his mental health based upon 

the court's pre-trial ruling. 

The court did not engage in an analysis under N.J.R.E. 609(b)(1) to 

determine if defendant's remote convictions were more probative than 

prejudicial. It merely determined that because defendant continually violated 

our laws, "all [of] defendant's convictions will be subject to impeaching [his 

credibility] if he testifies." We engage in that analysis. 

As to factors one and four, there were four third-degree offenses involving

theft, weapon possession, receipt of stolen property, and CDS with intent to 
11 A-2556-19

distribute, that arguably weighed against admissibility. The two second-degree 

offenses and one first-degree offense, involving eluding and robbery, weighed

in favor of admissibility. With respect to factor two, none of the offenses

involved dishonesty, lack of veracity, or fraud, thus weighing against 

admissibility. As to factor three, three of the offenses occurred about twentythree years before this incident, with the remaining four offenses occurring

between approximately nineteen, seventeen, fifteen, and fourteen years before 

this incident. This weighed against admissibility. In sum, considering the four 

N.J.R.E. 609(b)(2) factors, we conclude the timing and nature of the seven 

convictions weighed against admissibility.

We must next consider whether the State proved that the "probative value 

[of the remote convictions] outweigh[ed] [the] prejudicial effect" of their 

admission. N.J.R.E. 609 (b)(1). The State did not. The State concedes that the 

admission of the prior convictions was error but asserts it was harmless. As 

noted, the court considered only the number of defendant's offenses without 

addressing the prejudice of the convictions if defendant testified. The prior 

convictions were remote–some very much so–and were not indicative of 

defendant's honesty or veracity, but rather a person plagued by a past life of 

crime. See State v. Stevens, 115 N.J. 289, 300 (1989) ("It is thought that proof 
12 A-2556-19

of a previous crime will distract the jury, leading [it] to forego an independent 

analysis of the evidence and to rely merely on the tendency they possess in 

common with most people of saying 'once a thief – always a thief.'") (quoting 

State v. Ascolese, 59 N.J. Super. 393, 397 (App. Div. 1960)). We have little 

doubt that informing the jury about the number of defendant's convictions would 

have prejudiced him had he testified. 

Turning to the State's claim of harmless error, its reliance on Hedgespeth

is misplaced. There, we found error in the trial court's evidentiary ruling which 

kept the defendant from testifying, but determined no unjust result occurred 

where "the State's evidence was so strong . . . there was no real possibility that 

the jury would have reached a different result," and there was evidence

corroborating the State witnesses' testimony. Hedgespeth, 464 N.J. Super. at 

438. Here, the admission of defendant's convictions prompting him not to testify

due to their prejudicial effect on his defense was not harmless.

The jury found defendant guilty of third-degree terroristic threats and 

simple assault. The former is committed where a person "threatens to commit 

any crime of violence with the purpose to terrorize another. . . ." N.J.S.A. 2C:12-

3(a). The latter occurs when a person "[a]ttempts to cause . . . bodily injury to 

another" or "[a]ttempts by physical menace to put another in fear of imminent 
13 A-2556-19

serious bodily injury." N.J.S.A. 2C:12-1(a)(1) and -1(a)(3). The State's 

evidence through Carl's and Edna's testimony satisfied the elements of both 

offenses. The jury, however, did not hear defendant explain his intentions 

regarding his demands to Carl and Edna for guns and use of their phones to call 

the police and for emergency assistance. While the jury could have completely 

disregarded defendant's testimony, given the bizarre nature of his conduct, the

jury may have found it illuminating and been persuaded that he did not have the 

mens rea to commit the crimes. 

Obviously, we have no crystal ball to predict what would have happened

had defendant testified. But we are convinced that the court mistakenly applied 

its discretion to admit defendant's remote convictions that, in turn, kept him from 

exercising his right to testify, and violated his due process rights and deprived 

him of a fair trial. U.S. Const. amends. VI, XIV; N.J. Const. art. 1, ¶¶ 1, 10; 

Rock v. Arkansas, 483 U.S. 44, 50 (1987) ("The necessary ingredients of the 

Fourteenth Amendment's guarantee that no one shall be deprived of liberty 

without due process of law include a right to be heard and to offer testimony. . . 

.") The court's ruling constituted plain error because it produced an unjust result

– defendant was convicted without testifying because of the prejudicial effect of 

being confronted with his numerous remote convictions. See R.J.M., 453 N.J. 
14 A-2556-19

Super. at 264 ("Because defendant was unfairly prevented from testifying, and 

the jury might have reached a different result had defendant testified, we reverse 

the conviction and remand the case for retrial."). 

III.

Because we are reversing defendant's convictions, we do not address 

defendant's excessive sentence arguments. Finally, to the extent we have not 

addressed any of the parties' arguments, it is because we have concluded that 

they are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). 

Reversed and remanded for retrial consistent with this opinion. We do 

not retain jurisdiction.