RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5846-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS P. CANALES, 

a/k/a THOMAS P. 

CHAPAWESTON,

Defendant-Appellant.

________________________

Submitted January 4, 2021 – Decided August 20, 2021

Before Judges Hoffman, Suter and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 17-02-

0143.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David A. Gies, Designated Counsel, on the 

briefs).

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (Nancy A. Hulett, Assistant 

Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-5846-17

PER CURIAM 

Following a trial that extended over parts of three months, a jury found 

defendant Thomas P. Canales guilty of three counts of second-degree sexual 

assault against a minor under the age of thirteen, N.J.S.A. 2C:14-2(b); three

counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a)(1); and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-

3(b). On May 11, 2018, the trial judge sentenced defendant to an aggregate 

prison term of seventeen and one-half years. Defendant now appeals his 

conviction and sentence. Because we conclude there is reasonable doubt as to 

whether improperly admitted evidence under N.J.R.E. 404(b) led the jury to a 

result it otherwise might not have reached, we vacate defendant's conviction and 

sentence, and remand for a new trial. 

I.

On February 1, 2017, a Middlesex County grand jury indicted defendant

on charges related to four separate incidents, alleging defendant sexually 

assaulted three girls under the age of thirteen (J.R., H.C., L.K-D.) and one adult 

woman (E.J.).1 Specifically, the indictment charged defendant with the 

1

 We use initials to protect the victims' identities, pursuant to Rule 1:38-3(c)(9), 

(12). 
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following offenses: second-degree sexual assault upon J.R., who was less than 

thirteen years of age and defendant being at least four years older, N.J.S.A. 

2C:14-2(b) (count one); third-degree endangering the welfare of a child, J.R., 

N.J.S.A. 2C:24-4(a)(1) (count two); second-degree sexual assault upon H.C., 

who was less than thirteen years of age and defendant being at least four years 

older, N.J.S.A. 2C:14-2(b) (count three); third-degree endangering the welfare 

of a child, H.C., N.J.S.A. 2C:24-4(a)(1) (count four); fourth-degree criminal 

sexual contact against E.J., N.J.S.A. 2C:14-3(b) (count five); second-degree 

sexual assault upon L.K-D., who was less than thirteen years of age and 

defendant being at least four years older, N.J.S.A. 2C:14-2(b) (count six); and 

third-degree endangering the welfare of a child, L.K-D., N.J.S.A. 2C:24-4(a)(1) 

(count seven).

The assaults alleged in the indictment occurred over a four-month period 

in four different municipalities in central Middlesex County. Defendant's first 

trial ended in a mistrial after the jury could not reach a verdict. Defendant's 

retrial occurred between November 28, 2017 and January 2, 2018. Prior to trial, 

the State moved for permission to admit certain N.J.R.E. 404(b) evidence as part 

of its case in chief. The evidence concerned an uncharged sexual assault that 

occurred on August 26, 2016, two days before the last of the four assaults 
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included in the indictment against defendant. The judge granted the State's 

motion, following an evidentiary hearing held near the end of the State's case; 

at the hearing, B.V. – the victim of the uncharged assault – testified. The next 

day, the State presented the testimony of B.V. as its last witness. Thereafter, 

defendant testified, denying all allegations; in addition, defendant's wife 

testified. Following summations and the judge's charge, the jury received the 

case on December 14, 2017. On the fourth day of deliberations, the jury found 

defendant guilty of all counts.

We set forth the relevant facts and trial testimony concerning the four 

charged assaults, followed by the relevant facts and trial testimony concerning 

the uncharged assault.

Assault of J.R.

On April 20, 2016, a man in a pickup truck stopped J.R., an eleven-yearold girl, as she walked down her street in North Brunswick. The man asked her 

if there was anywhere nearby to eat, told her he was there for modeling business, 

and told her that she was really pretty. At some point, while the man spoke to 

her, J.R. looked inside the truck; at that point, she saw the man fondling himself 

with his private parts exposed. After realizing what she just observed, J.R. 

walked away.
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On April 20, and April 26, 2016, the police interviewed J.R., who 

recounted for them what happened. The police recorded the latter interview on 

video, which the State played for the jury at defendant's trial. During the 

interview, J.R. told the police that the man's truck was dark blue, almost black, 

and described the man as "kind of chubby" with "really chubby cheeks, and he 

had kind of like a beard." She stated the man was wearing a backwards baseball 

cap. On January 3, 2017, suspecting J.R.'s case may be related to other cases, 

police showed J.R. a photo array, a series of photographs that included 

defendant's photograph; however, J.R. did not select any of the photographs. 

J.R. testified at defendant's trial, describing the man as "tan" with "really 

chubby cheeks" and "a small forehead, and he was kind of big." She did not 

remember the color of the truck the man drove, but she did recall it had "the 

number 4 X 4 on it." J.R. was not asked to identify her assailant.

Assault of H.C.

On the afternoon of July 3, 2016, seven-year-old H.C. was on the porch 

of her New Brunswick home playing with her sister when she walked down the 

stairs to retrieve a ball. At that point, a black car pulled up in front of H.C.'s 

house, and a man inside the car "said something" to H.C., who looked inside the 

car and saw the man masturbating. The man then said "sorry" to H.C. At that 
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point, H.C.'s father emerged from the home and yelled at the driver of the car, 

but the man drove off. 

New Brunswick Officer Justin Miller responded to the scene after the man 

drove off. Officer Miller spoke with H.C., who told him the man in the car "tried 

to get [her] to come to the vehicle." Officer Miller also testified that H.C.'s 

father told him that the man was Hispanic and drove a black Honda. Two days 

later, on July 5, 2016, H.C.'s father informed a detective that H.C. had revealed

that the man in the car was masturbating. 

On September 1, 2016, the police conducted a recorded forensic interview 

of H.C., which the State played for the jury at defendant's trial. During the

interview, H.C. stated the man in the car was "fat" and had brown skin. She

recounted that the man stopped the car and asked her, "Where is the gas 

station[?]" and that the man was touching his exposed genitalia. Also, during 

this September 1 interview, the police presented H.C.'s father with a series of 

photographs, which included a photograph of defendant. H.C.'s father selected 

the photo of defendant and identified him as the driver of the car. 

At trial, H.C.'s father stated the man was driving a black car and that the 

man "looked Hispanic." He also identified defendant at trial as the driver of the 

car who spoke to his daughter on July 3, 2016. On cross-examination, H.C.'s 
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father acknowledged that at defendant's first trial, the judge asked him, "[D]o 

you see the person in court[?]," and he responded, "I can't see him." When asked 

to explain the change in his testimony from only three months earlier, H.C.'s 

father explained, "Because I was afraid that day."

H.C. also testified at trial, stating the man "looked like he was brown. 

Like dark brown. And he didn't have hair." She was not asked if the driver of 

the car was in court.

Assault of E.J.

On August 25, 2016, E.J., an Edison resident in her thirties, walked with 

her three-year old daughter to a park near the apartment complex where they 

lived. E.J. and her daughter were alone until a man arrived and sat on a bench 

in front of the playground's slide. E.J. realized the man was watching her and 

her daughter and decided to go home. Back at the apartment complex, E.J. went 

to get chalk out of her car for her daughter when the man appeared and walked 

toward her. The man asked E.J. for directions to Highland Park and asked the 

age of her daughter. When E.J. turned to point in the direction of Highland Park, 

the man groped and squeezed E.J.'s buttocks. He then ran away. 

Police eventually connected the assault of E.J. with the other cases and 

arranged for E.J. to view a photo array on September 8, 2016. During this 
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review, E.J. selected defendant's photo and stated, "He looks familiar, but I'm 

not one hundred . . . percent sure." At defendant's trial, she explained that "after 

picking him out from the line of photos, I was somewhat concerned . . . as to the 

question[,] what if I picked the wrong person[?], but sometime later I saw his 

picture again in a newspaper article and I realized that that was the right person." 

E.J. also identified defendant in court as the man she saw at the park in Edison 

and the man who groped her. Additionally, the State played surveillance video 

from the area where the assault took place, and E.J. pointed out herself and her 

daughter walking back to the apartment complex, defendant following them, and 

then defendant running away.

Assault of L.K-D.

On August 28, 2016, at around 8:30 p.m., eleven-year-old L.K-D. went 

outside to retrieve her phone from the family car parked at the curb in front of 

their home in Highland Park. When L.K-D. went to open the car door, she 

realized someone was behind her. It was a man, who L.K-D. did not know. He 

asked her for directions. She answered his question and the man thanked her 

and tried to shake her hand. The man then grabbed L.K-D.'s arm and touched 

her buttocks once or twice. The car door was still open and L.K-D. managed to 

climb inside. L.K-D. moved to the back of the car while the man poked his head 
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through the doorway of the car and asked L.K-D. her name. The man also told 

L.K-D. to take off her shirt and touched her stomach. Eventually, the man ran 

away. 

On the night of the assault, police conducted a videotaped interview of 

L.K-D., which the State played for the jury at defendant's trial. During this 

interview, L.K-D. said the man had "dark hair," which was "short and spiky." 

She also stated he was white and appeared to be in his forties. 

Three days later, on August 31, 2016, police arranged a photo array for 

L.K-D. that contained defendant's photograph; however, L.K-D. did not select a 

photograph from the array. 

At defendant's trial, L.K-D.'s father testified that on the night of the attack, 

L.K-D. told her the man who attacked her was white. L.K-D. testified that she 

did not remember what the man looked like and stated she "couldn't see him 

very well." L.K-D. was not asked to identify her assailant. 

Uncharged Assault of B.V.

At approximately 8 a.m. on August 26, 2016, B.V., a twenty-year old 

college student, was walking to work in New Brunswick when a "smaller car" 

that was "either black or navy blue" pulled up next to her. The car had a New 

Jersey license plate. The man driving the car rolled down his passenger window 
10 A-5846-17

and asked her for directions to the nearest gas station. As B.V. began answering 

the man's question, she peered into the car through the open window and 

observed that the man "had exposed himself and was masturbating in the front 

seat." She then walked away because she "needed to get to work" and "it just 

seemed easier and better just to get to work." Later that day, however, B.V. 

reported the incident to the police, informing them the perpetrator was "a white 

male . . . ." 

On September 10, 2016, the police arranged for B.V. to view a photo array 

containing six photographs. B.V. selected defendant's picture and stated, "This 

one is recognizable. . . . Like I feel that this one is like the most – like the face 

structure, this is like the face I remember. Because a lot of his face was covered, 

but like this is like the face I remember." She stated she was seventy-five 

percent certain she identified the correct person. Defendant was not charged 

with any crime related to the assault of B.V. 

Defendant's Arrest and First Trial

On August 28, 2016, the same day of the assault of L.K-D., but earlier 

during the day, G.S., J.B. and some other friends opened a lemonade stand not 

far from their homes in Highland Park. G.S. was then thirteen years old and J.B. 

ten years old. 
11 A-5846-17

A truck pulled up to the lemonade stand and its driver asked the girls for 

directions to a gas station, which G.S. provided. At trial, G.S. stated the truck 

was "like a metallic like grayish," and she was "pretty sure it was Ford." She 

remembered the man had "like maybe like a darker skin kind of like mine, but 

like maybe like darker or lighter, it was, because it's like dark in the car. Not 

really dark in the car, but it was not easy to see." The man had a slight Spanish 

accent and was wearing a red shirt. J.B. testified at trial that the driver of the 

truck "looked Hispanic. He was like a little bit thicker and he had dark hair, like 

dark brown hair," which was "a little bit curly but . . . not like super curly. Just 

like little curls." J.B. also stated the man had some hair on his chin and cheeks. 

The same truck returned to the lemonade stand and gave one of the girls a 

dollar. When G.S.'s mother approached the truck, it drove away. The truck 

returned again, and the driver attempted to give the girls another dollar, but they 

declined it. As the truck drove away, J.B. wrote down the truck's license plate 

number on her arm. Later that evening, the parents of the girls contacted the 

police and reported the suspicious man driving the truck.

Because the assault of L.K-D. occurred only blocks away from where G.S. 

and J.B. set up their lemonade stand, the police began considering the two events 

might be related. The police completed a look-up of the license plate number 
12 A-5846-17

J.B. wrote on her arm, which yielded defendant's name and address. On August 

30, 2016, the police drove to defendant's address and observed a charcoal gray 

pick-up truck with the license plate number written down by J.B.; in addition,

they observed a black Honda Accord registered to defendant's wife. 

Meanwhile, Highland Park police posted a TRAX bulletin to other law 

enforcement departments about the incident involving L.K-D. to see if a similar 

incident had occurred elsewhere. A New Brunswick police officer, who 

investigated the assault of H.C., saw the bulletin and thought the cases were 

connected based on the fact that they both involved an adult asking children for 

directions. This led to a September 1, 2016 meeting between the police, H.C., 

and H.C.'s father, where H.C.'s father selected defendant's picture from a photo 

array. The police arrested defendant that day. After the police connected 

defendant to the other alleged assaults, the Middlesex County grand jury

returned the seven-count indictment against defendant previously described. 

Defendant's first trial on these charges began in July 2017; however, the judge 

declared a mistrial after the jury could not reach a verdict. 

Defendant's Second Trial

The State retried defendant, this second jury trial taking place between 

November 28, 2017 and January 2, 2018, including six days of witness 
13 A-5846-17

testimony. J.R., H.C., H.C.'s father, E.J., B.V., L.K-D., L.K-D.'s father, G.S., 

G.S.'s mother, J.B., and various police witnesses testified for the State. The 

State also played police video recordings of the photo array identification 

procedures utilized with J.R., H.C.'s father, E.J., B.V, and L.K-D.

The State also presented a cell tower map, generated using defendant's 

cell phone records, which showed that a short time before the North Brunswick 

incident in April 2016, a call from defendant's cell phone hit a cell phone tower 

in North Brunswick; that a short time before the New Brunswick incident on 

July 3, 2016, a phone call from defendant hit a cell phone tower in New 

Brunswick; that defendant's last phone call prior to the Edison incident on 

August 25, 2016 hit a cell phone tower in Edison; that within twenty minutes of 

the Highland Park incident on August 28, 2016, a phone call from defendant's 

phone hit a cell phone tower in Highland Park. Additionally, firefighters of the 

East Franklin Fire Department, of which defendant was a member in 2016, 

testified that defendant helped cover fire protection for the fire department in 

Highland Park on August 28, 2016, the day of the Highland Park incidents 

involving the lemonade stand and L.K-D. They testified that defendant and two 

other firefighters rode in a fire truck to Highland Park's fire station in the 
14 A-5846-17

morning and rode back to East Franklin on the truck shortly after the Highland 

Park firefighters returned from their training, at around 1:00 or 2:00 p.m.

Notwithstanding the substantial evidence already presented, the State 

sought to end its case by admitting evidence of B.V.'s assault under N.J.R.E. 

404(b). On December 11 and 13, 2017, the trial judge held a N.J.R.E. 104(c) 

hearing on the State's motion. At the hearing, B.V. recounted what occurred on 

August 26, 2016, describing the perpetrator as a "heavier-set" white man 

wearing sunglasses. She also stated she remembered telling the police the man 

had a goatee. Notably, when asked by the prosecutor if she would be able to 

identify the man again if she saw him in person, B.V. stated she did not think 

she could.

After B.V.'s testified, defendant's attorney argued that evidence of B.V.'s 

assault should not be admitted because the risk of undue prejudice outweighed 

the evidence's probative value. Specifically, he argued B.V.'s testimony lacked 

probative value because of her admitted inability to identify her assailant and 

her uncertainty in selecting defendant's picture during the photo array. He 

contended the prejudicial effect of "pil[ing] on" an unreliable fifth accusation 

thus outweighed the non-existent or minimal probative value of the evidence of 

the uncharged assault of B.V. Rejecting this argument, the trial judge granted 
15 A-5846-17

the State's motion and admitted B.V.'s testimony, finding it satisfied the 

requirements set forth in State v. Cofield, 127 N.J. 328 (1992) and State v. Fortin

(Fortin I), 162 N.J. 517 (2000).

When B.V. testified at trial, she recalled telling police that her assailant 

"was a more heavyset man[,]" and she remembered "he had like shorter hair" 

and "some facial hair like a goatee." She recalled he "was wearing sunglasses, 

so I couldn't really see his face that well, but I could see it enough, I guess." She 

also stated, "[f]rom what I could tell, he was definitely lighter complexion, so I 

assumed he was white." B.V. did not bend down to look at the man as she spoke 

to him. She described the man's car as "small and dark in color, like black or 

navy blue."

Despite B.V.'s statement at the motion hearing that she did not think she 

would be able to identify her assailant if she saw him again in person, at trial, 

the following exchange inexplicably took place between the prosecutor and B.V. 

during direct examination: 

Q: And in discussing this matter with you, I've asked 

you if you could recognize the person if you saw

him again. You indicated that you could. Is that

correct?

A: Yes.
16 A-5846-17

Q: All right. Let me ask you this. If you look at the 

photograph that you selected back in September

of 2016, could you tell us if the person in that 

photograph is here in the courtroom?

A: No. No, I don't think he is in the courtroom.

After the State rested, defendant testified, denying the allegations against 

him. He admitted he was in Edison on the day of E.J.'s assault, though he 

claimed he was cutting lawns there. In addition, he admitted he was in Highland 

Park on August 28, when he accompanied other members of the East Franklin 

Fire Department. Defendant recounted, 

[W]hile we were at Highland Park, we responded to two 

calls. While we were on those two calls, I noticed . . . 

a couple properties that I wanted to pick up for 

landscaping, [I] was trying to build my accounts in [the] 

Highland Park area due to the fact that I had lost a 

couple of them. And so I went back to Highland Park 

to try to measure the properties and get some more 

information on them.

Regarding this return to Highland Park, defendant recalled, "I definitely 

remember the lemonade stand. I remember pulling up and asking for lemonade 

when I saw the stand"; however, "they didn't have any ready." Defendant 

testified he left the area "between 6 and 7 p.m." and "went fishing."

On January 2, 2018, on the fourth day of deliberations, the jury returned 

its verdict, finding defendant guilty on all seven charged counts. On May 11, 
17 A-5846-17

2018, the trial judge sentenced defendant to an aggregate prison term of 

seventeen and one-half years, representing two concurrent eight-year terms on 

counts one and three, a consecutive eighteen-month sentence on count five, and 

a consecutive sentence of eight years on count six. The sentences for counts 

one, three, and six were subject to periods of parole ineligibility under the No 

Early Release Act, N.J.S.A. 2C:43-7.2. The judge merged count two with count 

one, count four with count three, and count seven with count six. 

This appeal followed, with defendant raising the following arguments:

POINT ONE

THE TRIAL JUDGE'S FINDING THAT THE 

UBIQUITOUS FEATURES DEMONSTRATED A 

SUFFICIENTLY SIMILAR UNIQUENESS WAS AN 

ABUSE OF DISCRETION. 

POINT TWO

THE TRIAL JUDGE'S JURY CHARGE AS TO THE 

MANNER IN WHICH B.V.'S TESTIMONY, 

TOGETHER WITH THE ADMISSION OF THE 

PHOTOGRAPH SHE IDENTIFIED, COULD BE 

USED DURING DELIBERATIONS REGARDING 

THE QUESTION OF IDENTITY WAS PLAIN 

ERROR. (Not raised below).

POINT THREE

THE CONSECUTIVE PORTION OF THE 

SENTENCE IMPOSED WAS EXCESSIVE. 
18 A-5846-17

POINT FOUR

THE FAILURE TO SEVER THE FOUR SEPARATE 

INCIDENTS OF SEXUAL ASSAULT WAS 

CLEARLY CAPABLE OF PRODUCING AN 

UNJUST RESULT. (Not raised below).

POINT FIVE

THE TRIAL ATTORNEY'S FAILURE TO MAKE A 

MOTION TO SEVER AMOUNTED TO 

INEFFECTIVE ASSISTANCE OF COUNSEL. (Not 

raised below).

II. 

Defendant challenges the trial judge's admission of B.V.'s testimony, 

arguing it failed to meet the "stringent" requirements to admit evidence when 

offered under N.J.R.E. 404(b) "to link a particular defendant to a crime on the 

basis of modus operandi, or a signature way of committing the crime." State v. 

Sterling, 215 N.J. 65, 93 (2013) (citing Fortin I, 162 N.J. at 530-31). We agree. 

N.J.R.E. 404(b) governs other crimes, wrongs, or acts evidence as follows:

[E]vidence 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.
19 A-5846-17

In light of its potential for prejudice, "[e]vidence relating to other crimes is 

handled with particular caution." State v. Reddish, 181 N.J. 553, 608 (2004). 

The concern in admitting evidence of other crimes or bad acts "is that a jury may 

convict a defendant not for the offense charged, but for the extrinsic offense[,]" 

State v. Garrison, 228 N.J. 182, 193-94 (2017), or "because he is 'a "bad" person 

in general[,]'" Cofield, 127 N.J. at 336 (quoting State v. Gibbons, 105 N.J. 67, 

77 (1987)). 

Because of the dangers that admission of other crimes evidence presents, 

"evidence proffered under Rule 404(b) 'must pass [a] rigorous test.'" Garrison, 

228 N.J. at 194 (quoting State v. Kemp, 195 N.J. 136, 159 (2008)). Under this 

test, commonly known as the Cofield test, evidence is admissible under N.J.R.E. 

404(b) if the following four prongs are met: 

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.

[Cofield, 127 N.J. at 338.]
20 A-5846-17

Under the first prong of the Cofield test, "[e]vidence is relevant if it tends 

'to prove or disprove any fact of consequence to the determination of the 

action.'" State v. Covell, 157 N.J. 554, 565 (1999) (quoting N.J.R.E. 401). To 

satisfy the first prong, the offered evidence must also concern a material issue. 

State v. Rose, 206 N.J. 141, 160 (2011) (quoting State v. P.S., 202 N.J. 232, 256

(2010)). An issue is material if "the matter was projected by the defense as 

arguable before trial, raised by the defense at trial, or was one that the defense 

refused to concede." Ibid. (quoting P.S., 202 N.J. at 256). Identity is a material 

issue when a defendant claims he was not the perpetrator of the charged crime. 

See Sterling, 215 N.J. at 99; State v. Baluch, 341 N.J. Super. 141, 192 (App. 

Div. 2011).

Proof of the second prong is not required in all cases, but only in those 

that replicate the facts in Cofield, where "evidence of drug possession that 

occurred subsequent to the drug incident that was the subject of the prosecution 

was relevant to prove possession of the drugs in the charged offense." State v. 

Barden, 195 N.J. 375, 389 (2008).

The third prong requires clear and convincing proof that the person against 

whom the evidence is introduced actually committed the other crime or wrong. 

State v. Carlucci, 217 N.J. 129, 143 (2014). "[T]he prosecution must establish 
21 A-5846-17

that the act of uncharged misconduct . . . actually happened by 'clear and 

convincing' evidence." Rose, 206 N.J. at 160 (quoting Cofield, 127 N.J. at 338).

Last, the fourth prong is "generally the most difficult part of the test."

Barden, 195 N.J. at 389. "Because of the damaging nature of such evidence, the 

trial court must engage in a 'careful and pragmatic evaluation' of the evidence to 

determine whether the probative worth of the evidence is outweighed by its 

potential for undue prejudice." Ibid. (quoting State v. Stevens, 115 N.J. 289, 

303 (1989)). The analysis incorporates balancing prejudice versus probative 

value required by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that 

the prejudice substantially outweigh the probative value of the evidence. 

Reddish, 181 N.J. at 608. Rather, the risk of undue prejudice must merely 

outweigh the probative value. Ibid.

We review a trial court's ruling on the admissibility of other crimes, 

wrongs, or bad acts evidence for abuse of discretion. Barden, 195 N.J. 390-91. 

We afford great deference to the court's ruling and will reverse only where there 

was a clear error of judgment. Ibid.

Generally, evidence of a crime or bad act may be used to prove identity in 

two situations: 1) when specific evidence derived from one offense connects 

multiple offenses; or 2) when the crimes are signature crimes. Sterling, 215 N.J. 
22 A-5846-17

at 92-93. For example, joinder has been permitted where police found specific 

items stolen during the first burglary when they arrested defendant for the 

second burglary. State v. Pierro, 355 N.J. Super. 109, 117 (App. Div. 2002). 

Alternatively, courts have admitted signature-crime evidence to prove identity 

when the unique nature of the crimes is clear. State v. Fortin (Fortin II), 189 

N.J. 579, 594 (2007). "The conduct in question must be unusual and 

distinctive," and "there must be proof of sufficient facts in both crimes to 

establish an unusual pattern." Fortin, 162 N.J. at 530 (quoting State v. Reldan, 

185 N.J. Super. 494, 502-03 (App. Div. 1982)). However, "[t]he standard for 

admitting other-crimes evidence to prove identity becomes more stringent when 

the State attempts to link a particular defendant to a crime on the basis of modus 

operandi, or a signature way of committing the crime." Sterling, 215 N.J. at 93.

Here, we are convinced the trial judge mistakenly exercised her discretion 

by admitting evidence of B.V.'s assault because this evidence did not satisfy the 

requirements for admission under N.J.R.E. 404(b). Our concerns begin with the 

third Cofield prong, which required the State prove by clear and convincing 

evidence that defendant actually committed the assault of B.V. The trial judge 

found the State clearly and convincingly established defendant assaulted B.V. 

based on 
23 A-5846-17

the totality of her testimony regarding the incident, 

including her description of being stopped by a man in 

a small black car asking for directions to a gas station, 

followed by his exposing himself. 

Her testimony in that regard was solid. She did 

report the incident that day, the day it happened, and 

she identified the defendant, as I said, in the lineup on 

the video with 75 percent certainty. The [c]ourt is 

aware from the trial that the defendant has access to a 

black Honda that is registered to his wife, when the

vehicles were traced back from the lemonade stand 

young lady's writing down his license plate number. 

The judge, however, failed to appreciate the significance of B.V.'s 

acknowledgement during the N.J.R.E. 104(c) hearing that she did not think she 

could identify the perpetrator if she saw him again. Indeed, when she testified 

before the jury, she was asked to "look at the photograph that you selected back 

in September of 2016," and "tell us if the person in that photograph is here in 

the courtroom?" B.V. responded, "No. No, I don't think he is in the courtroom."

Our Supreme Court has ruled that video evidence allegedly depicting a 

defendant committing an uncharged robbery "did not satisfy the Cofield

admissibility standard that the evidence must be clear and convincing" when 

"the masked robbers recorded on the videotape were unrecognizable." State v. 

Darby, 174 N.J. 509, 521 (2002). This is analogous to the case under review, 

where B.V. indicated she could not recognize the man who assaulted her. At 
24 A-5846-17

the very least, B.V.'s admitted inability to identify her attacker seriously 

undermines the trial judge's finding that the evidence defendant assaulted B.V. 

was clear and convincing. Cf. State v. Angoy, 329 N.J. Super. 79, 86-87 (App. 

Div. 2000) (finding "the State met the 'clear and convincing' standard" under 

Cofield by presenting a witness who described the defendant's prior bad act 

through testimony that was "consistent, detailed, and specific."). 

B.V.'s uncertainty as to defendant's identity also implicates the first and 

fourth Cofield prongs. The first prong requires the other-crimes evidence be 

relevant. However, because B.V. could not identify defendant, her testimony 

had little or no tendency to prove defendant's identity as the perpetrator of the 

charged sexual assaults. The evidence of B.V.'s assault thus had no or minimal 

probative value, which was outweighed by the prejudice inherent in other-crimes 

evidence. See Darby, 174 N.J. at 521 ("The videotape was not relevant and 

hence had no probative value."). 

When B.V. informed the judge, outside the presence of the jury, that she 

could not identify defendant, the judge should not have allowed the jury to hear 

B.V.'s testimony. Permitting B.V. to testify, knowing she could not identify 

defendant, constituted harmful error that compromised defendant's right to a fair 

trial. 
25 A-5846-17

The trial judge's reliance on Fortin I was misplaced. While Fortin I

recognized the principle that 404(b) evidence is admissible to prove identity 

when the "bizarre quality of the crime is self-evident," the issue there involved 

whether the comparative analysis of the "signature-crime" evidence with the 

crimes set forth in the indictment required expert testimony. Fortin I, 189 N. J. 

at 595-596. No such issue was presented in this case.

The trial judge also cited State v. Porambo, 266 N.J. Super. 416 (App. 

Div. 1988) as providing support for her decision to allow the State to admit the 

B.V. incident as part of its case. In Porambo, we found no abuse of discretion 

when the trial court allowed the State to admit evidence of the defendant's 

participation in another robbery to prove his identity in the crime charged in the 

indictment. Id. at 423. We determined the trial judge's finding was reasonable 

to warrant admission of the other robbery where the two crimes had "similar, 

unusual, and distinctive features,'' such as the defendant gained entry wearing a 

beard and mustache disguise and posed as a fireman in one assault and as a 

policeman in the other. Id. at 423-24.

Unlike Porambo, the trial judge here found that the features characterizing 

the circumstances in these incidents "may not be signature crimes." 

Notwithstanding this finding, the judge nonetheless determined that the 
26 A-5846-17

incidents were "unique enough'' based on ''locations,'' "vehicles" and "timings" 

to suggest a "sufficiently similar" modus operandi. Because the "sufficiently 

similar" standard does not reflect the heightened burden which involves a 

finding of "unusual and distinctive features," the trial judge's decision to admit 

the B.V. incident constituted a clear mistaken exercise of discretion.

We reject the State's argument that we find the introduction B.V.'s 

testimony as other-crimes evidence amounted to harmless error. There were 

inconsistencies between B.V.'s description of her assailant and the descriptions 

provided by the victims of the charged assaults, most notably in terms of his 

skin color; in addition, three of the victims of the charged assaults did not 

identify defendant, either during the photo array identification procedure or at

trial. Defendant's identity as the perpetrator of the four charged assaults was the 

major issue at trial. We therefore conclude the trial judge's error in admitting 

B.V.'s testimony was a clear error of judgment that was "clearly capable of 

producing an unjust result." State v. Shepard, 437 N.J. Super. 171, 188 (App. 

Div. 2014) (citing R. 2:10-2). 

Because we vacate defendant's conviction and sentence based on the 

harmful error in admitting B.V.'s testimony under N.J.R.E. 404(b), we decline 

to address defendant's remaining arguments. 
27 A-5846-17

Reversed and remanded. We do not retain jurisdiction.