SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5670-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN BLOCKER, a/k/a 

JOHN JACOBS, KHALID 

JOYNER, KHALID JACOBS,

and TREVOR JACOBS, 

Defendant-Appellant.

__________________________

Argued February 14, 2022 – Decided July 20, 2022

Before Judges Messano, Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment No. 16-03-

0254.

James K. Smith, Jr., Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; James K. Smith, Jr., of 

counsel and on the briefs).

Sarah C. Hunt, Deputy Attorney General, argued the 

cause for respondent (Matthew J. Platkin, Acting 

NOT FOR PUBLICATION WITHOUT THE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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Attorney General, attorney; Sarah C. Hunt, of counsel 

and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

On January 20, 2006, Juan Cuevas, Sr., was brutally tortured and killed in 

the bedroom of his Washington Township home by four intruders as his three 

children — captives in a nearby bedroom — heard their father's screams. The 

homicide remained unsolved until nearly a decade later, when defendant John 

Blocker was arrested and charged. 

A Gloucester County grand jury indicted defendant for murder, felony 

murder during "a robbery and/or kidnapping," armed burglary, armed robbery, 

and three counts of kidnapping — one for each of the three Cuevas children —

"with the purpose of holding [them] for ransom or reward or a shield or hostage." 

Following a twelve-day trial at which the three children testified but were never 

asked to identify defendant, the jury convicted defendant of the lesser-included 

offense of aggravated manslaughter and all other charges. 

The judge granted the State's motion to sentence defendant as a persistent 

offender, see N.J.S.A. 2C:44-3(a). After denying defendant's motion for a new 

trial and ordering appropriate mergers, the judge imposed a 50-year term of 

imprisonment on the felony-murder conviction, and consecutive 15, 20, and 30-
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year terms on the three kidnapping convictions, one for each child, for an 

aggregate 115-year term of imprisonment, with a 97-year, 9-month period of 

parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. This 

appeal followed.

Defendant raises the following points for our consideration:

POINT I

THE TRIAL JUDGE SHOULD HAVE ENTERED A 

JUDGMENT OF ACQUITTAL ON THE 

KIDNAPPING COUNTS ON HIS OWN INITIATIVE 

PURSUANT TO RULE 3:18-1 BECAUSE THERE 

WAS NO EVIDENCE THAT THE CHILDREN 

WERE UNLAWFULLY CONFINED "WITH THE 

PURPOSE OF HOLDING [THEM] FOR RANSOM 

OR REWARD OR AS A SHIELD OR HOSTAGE." 

(Not raised below)[1]

POINT II

THE JUDGE'S RULING THAT DEFENDANT 

COULD BE IMPEACHED WITH ALL OF HIS PRIOR 

CONVICTIONS, MOST OF WHICH WERE MORE 

THAN [TWENTY] YEARS OLD, WAS CONTRARY 

TO RULE 609(b), AND PRECLUDED DEFENDANT 

FROM TESTIFYING ON HIS OWN BEHALF, THUS 

DENYING HIM A FAIR TRIAL. 

1

 The alteration is in the original. We have eliminated all subpoints contained 

in defendant's brief.
4

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POINT III

GIVEN THE JURY'S VERDICTS THAT 

DEFENDANT WAS NOT GUILTY OF 

PURPOSEFUL MURDER AND DID NOT COMMIT 

THE CRIME BY HIS OWN CONDUCT, THE 

IMPOSITION OF A [NINETY-SEVEN]-YEAR 

PAROLE DISQUALIFIER WAS SO WILDLY 

EXCESSIVE AS TO SHOCK THE CONSCIENCE, 

AND WAS THE RESULT OF MULTIPLE 

SENTENCING ERRORS, INCLUDING THE 

FAILURE TO GIVE PROPER CONSIDERATION TO 

THE YARBOUGH[2] FACTORS, OR THE "REAL 

TIME" CONSEQUENCES OF THE SENTENCE. 

In a pro se supplemental brief, defendant argues:

POINT I

THE TRIAL COURT IMPROPERLY DENIED 

DEFENDANT'S MOTION FOR SUPPRESSION OF 

EVIDENCE, VIOLATING DEFENDANT'S STATE 

AND FEDERAL CONSTITUTIONAL RIGHTS TO 

DUE PROCESS AND A FAIR TRIAL.

Having considered the arguments in light of the record and applicable legal 

principles, we are compelled to reverse.

I.

We summarize the trial evidence only as necessary to address the issues 

raised.

2 State v. Yarbough, 100 N.J. 627, 643–44 (1985).
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In the early afternoon of January 20, 2006, eighteen-year-old Juan Cuevas 

Jr., known as Johnny, was home from school cleaning his car in front of the 

house while other members of the Cuevas family were elsewhere.

3

 Four men 

arrived in a van, pushed Johnny to the ground, dragged him into the house, and 

forced him upstairs to his parents' bedroom. They demanded to know where 

was "the money." Johnny told them about a safe under his parents' bed where 

his father kept coins, jewelry, and "certificates." Unsatisfied, the men tied 

Johnny's hands behind him, put a towel over his head, and placed him in the 

bathtub in his parents' bathroom as they ransacked the Cuevas home. They

periodically told Johnny they knew his father and knew there was money in the 

house. Johnny realized the men were armed. Over the next two-and-one-half 

hours, he remained restrained in the bathtub. At one point, he heard one man

tell another, "[L]et's just pop him and leave." 

Just then, Johnny's nineteen-year-old sister Vanessa arrived home and was 

immediately confronted by a man wearing gloves and a ski mask. At gunpoint, 

he forced Vanessa upstairs to her bedroom. Two men tied her up, threatened 

her, and demanded to know where the money was and when her father was due 

3 To avoid confusion, we sometimes use first names for the members of the 

Cuevas family. We intend no disrespect by this informality.
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home. Around 3 p.m., fourteen-year-old Jeremy arrived home from school. The 

masked men assaulted him, tied him up, and began questioning him about his 

father's autobody shop in Philadelphia. They again demanded to know where 

the money was kept in the house. While they continued to ransack the house, 

the men put all three children in Vanessa's room and proceeded to wait for Juan 

Sr. The children could hear them eating and drinking food from the kitchen, and 

they smelled the assailants' cigarette smoke throughout the house. 

When Juan Sr. arrived home, a fight ensued between him and the 

intruders, until the men told Juan Sr. they had his children. They threatened the 

children's lives if Juan Sr. did not give them the money they demanded. The 

assailants brought Juan Sr. into his bedroom, where the children could hear the 

men torturing him for nearly an hour. At one point, the men brought Vanessa 

to her father, who was tied-up and badly beaten. She saw duffel bags filled with 

the family's belongings and an iron. Vanessa knew the strange smell in the room 

meant the men used it to burn Juan Sr. Eventually, the men brought Vanessa 

back to her room with her siblings. When the children heard their father's 

screams stop, they knew the men had left the house. 

After freeing themselves, the children called 9-1-1 and administered CPR

to Juan Sr. However, the medical personnel who responded pronounced Juan 
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Sr. dead at the scene. The medical examiner determined Juan Sr. died from 

blunt force trauma to the head. 

Police processed the scene and interviewed the children. It suffices to say 

that while the four men sometimes took off their masks and gloves, and the 

children were able to describe them and the clothing they wore in general terms, 

none of the children could positively identify any of the four assailants through 

photographic identification procedures. Investigators were able to develop a 

composite sketch of one of the intruders. Investigators also tracked down leads 

on dozens of suspects, although defendant's name never surfaced throughout the 

investigation. One suspect, the alleged leader of a Philadelphia-based criminal 

gang, was convicted for his involvement in a similar home invasion one month 

earlier in a nearby town. 

Police dusted the scene for fingerprints and seized various items for 

comparison and DNA analysis. An orange juice container recovered from a

second-floor bathroom and a cigarette butt recovered from the kitchen floor 

revealed the same male DNA on both items, but the national database did not 

produce a match. The Cuevas case remained unsolved for years. 

In 2015, authorities were able to match a fingerprint found on an orange 

juice container retrieved from the kitchen of the Cuevas home when 
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investigators processed the scene. It was defendant's thumbprint. The Cuevas 

children had never heard of defendant, and none of Juan Sr.'s friends and 

acquaintances knew defendant. 

Investigators were able to identify defendant's girlfriend, Cherie Hawk, 

and located her home address. They devised a pretext to obtain a specimen of 

defendant's DNA. Detective William McCusker of the Philadelphia Police 

Department assigned to the FBI Violent Crimes Task Force was working with 

Gloucester County authorities and drove to Hawk's home. McCusker convinced 

defendant to accompany him to FBI offices in the federal building in 

Philadelphia. McCusker knew a weapons offense against defendant had been 

dismissed in 2006, and McCusker asked defendant for help regarding an "old 

gun job" by providing any information regarding the weapon. While in FBI 

offices, defendant smoked and discarded a cigarette, and investigators obtained

DNA from the discarded portion. It was consistent with DNA found on the

orange juice container retrieved by investigators from the second-floor 

bathroom in the Cuevas home and the cigarette butt from the kitchen, but a 

buccal swab sample was necessary to provide more conclusive results.

Defendant was arrested for the homicide in November 2015 in 

Philadelphia and extradited to New Jersey. After securing a court order, 
9

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investigators obtained a buccal swab from defendant in February 2016 and 

conducted further DNA analysis. They confirmed the DNA on the orange juice 

container from the second-floor bathroom matched defendant's DNA, and 

additionally, investigators matched the buccal sample to DNA found on the 

orange juice container in the kitchen and the cigarette butt found on the kitchen

floor. 

II.

Defendant moved pre-trial to suppress the discarded portion of the 

cigarette McCusker and his colleagues obtained during the pretextual 2015 FBI

interview in Philadelphia, arguing it was the fruit of an unlawful detention and 

interrogation. Defendant also contended that because the interview was not 

recorded pursuant to Rule 3:17, any evidence seized following the interview 

should be suppressed.

The judge held an evidentiary hearing on defendant's motion. McCusker 

testified, as did defendant, his sister, and Hawk. The judge specifically credited 

McCusker's testimony and found the defense testimony was not credible. 

Without specifically deciding, the judge concluded it did not matter whether the 

events were a "field inquiry" or an "investigative detention." He found 

investigators had a reasonable suspicion of defendant's involvement in the 
10 A-5670-18

Cuevas crimes before arriving at Hawk's home. Therefore, the judge concluded 

"[d]efendant was lawfully brought to FBI headquarters in Philadelphia." 

The judge rejected defendant's claim that the seizure of the cigarette was 

unlawful because McCusker never administered Miranda4rights to defendant. 

He concluded Miranda did not apply because the cigarette was "nontestimonial

physical evidence," and he also rejected defendant's argument based on an 

alleged violation of Rule 3:17. Lastly, the judge determined the "inevitable 

discovery exception" applied, reasoning that even if the court suppressed the 

cigarette recovered after the pretextual interview, investigators had sufficient 

probable cause to arrest defendant and would have eventually obtained the 

buccal swab for comparison to evidence recovered at the Cuevas home.

In his pro se brief, defendant largely reiterates the arguments made to the 

trial judge regarding this issue. In particular, he contends the evidence at the 

hearing demonstrated neither reasonable suspicion justifying an investigative 

detention nor that he voluntarily accompanied McCusker. We reject the 

contention and affirm denial of defendant's motion to suppress for reasons 

different than those expressed by the trial judge. See, e.g., Hayes v. Delamotte, 

231 N.J. 373, 387 (2018) ("not[ing] that 'it is well-settled that appeals are taken 

4 Miranda v. Arizona, 384 U.S. 436 (1966).
11 A-5670-18

from orders and judgments and not from opinions, oral decisions, informal 

written decisions, or reasons given for the ultimate conclusion.'" (quoting DoWop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001))).

In reviewing the denial of a motion to suppress, we defer to the trial 

judge's factual "findings [if] 'supported by sufficient credible evidence.'" State 

v. Radel, 249 N.J. 469, 493 (2022) (quoting State v. Elders, 192 N.J. 224, 243 

(2007)). "We defer to those findings of fact because they 'are substantially 

influenced by [an] opportunity to hear and see the witnesses and to have the 

"feel" of the case, which a reviewing court cannot enjoy.'" State v. Hubbard, 

222 N.J. 249, 262 (2015) (alteration in original) (quoting State v. Johnson, 42 

N.J. 146, 161 (1964)).

McCusker testified that he called defendant, asked him to come out of 

Hawk's home, and, when he did, McCusker invited him into his truck. He did 

not search defendant for weapons and had him sit in the front seat. McCusker

specifically asked defendant if it was acceptable to speak at the FBI offices. 

Defendant agreed, if McCusker would take him to his job after the interview. 

At the office, defendant willingly discussed the dismissed charge and smoked a 

cigarette in the interview room. The judge found all this testimony credible, and 

specifically rejected defendant's contrary version of events.
12 A-5670-18

Under these circumstances, the encounter between McCusker and 

defendant was more in the nature of a field inquiry than an investigative 

detention. A field inquiry consists of questions that "[are] not harassing, 

overbearing, or accusatory in nature," State v. Pineiro, 181 N.J. 13, 20 (2004)

(alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

"[T]he individual approached 'need not answer any question put to him; indeed, 

he may decline to listen to the questions at all and may go on his way.'" State v. 

Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 

(2001)). 

A field inquiry, as when a "police officer approaches an individual and 

asks 'if [the person] is willing to answer some questions'" is not a detention. 

Pineiro, 181 N.J. at 20 (alteration in original) (quoting Nishina, 175 N.J. at 510). 

Because a field inquiry is not a detention, police may question someone without 

probable cause or even reasonable suspicion of criminal activity. State v.

Adubato, 420 N.J. Super. 167, 177–78 (App. Div. 2011) (citing State v. 

Rodriguez, 172 N.J. 117, 126 (2002)). In sum, the seizure of defendant's 

discarded cigarette was not the fruit of an unlawful detention, and the motion to 

suppress was properly denied.
13 A-5670-18

To the extent we have not otherwise addressed them, defendant's 

arguments regarding denial of the motion lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).

III.

For the first time on appeal, defendant contends the judge should have sua 

sponte dismissed the three kidnapping charges because the State failed to 

produce any evidence that the children were held "for ransom or reward or [as] 

a shield or hostage." We reject the argument.

"Our law recognizes two forms of kidnapping, . . . . N.J.S.A. 2C:13-1(a) 

addresses holding a victim for ransom, reward[,] or as a hostage, while N.J.S.A. 

2C:13-1(b) criminalizes 'other purposes' or 'non-ransom kidnapping.'" State v. 

Jackson, 211 N.J. 394, 414 (2012). Here, the indictment charged defendant with 

kidnapping under subsection (a), which provides: "A person is guilty of 

kidnapping if he unlawfully removes another from the place where he is found 

or if he unlawfully confines another with the purpose of holding that person for 

ransom or reward or as a shield or hostage." N.J.S.A. 2C:13-1(a). The terms 

"ransom" and "hostage" are undefined in the Criminal Code. 

At the charge conference, the prosecutor said the evidence supported a 

finding that the children were held for ransom or as hostages. Although defense 
14 A-5670-18

counsel disagreed there was sufficient evidence the children were held for 

ransom, he never argued the evidence was insufficient to support a finding 

beyond a reasonable doubt that they were held as hostages. When the judge 

asked counsel to review the proposed charge, defense counsel had no objections. 

Consistent with Model Jury Charges (Criminal), "Kidnapping (N.J.S.A. 

2C:13-1(a))" (rev. Oct. 6, 2014), the judge instructed the jury:

The statute further defines the crime of kidnapping as 

an unlawful confinement of a person. The confinement 

need not be for a specific period of time, so long as the 

confinement was unlawful. That is, accomplished by 

force, threat, or deception and for the purpose of 

gaining ransom or using the victim as a shield or 

hostage. 

You will note that I've also used the term 

"ransom," "shield," and "hostage." "Ransom" is defined 

as the money, price, or consideration paid or demanded 

for redemption of a captive person. That is, a payment 

to secure the release of the captive person. One use[s] 

another person as a shield when by force he placed that 

person in a position of danger in order to protect 

himself. "Hostage" implies the unlawful taking, 

restraining, or confining of a person with the . . . intent 

. . . that the person confined be held as security to 

ensure that a third person either performs some actions 

or refrains from performing some action.[5]

5 There was no evidence to support a finding that the assailants used the children 

as shields, so it is unclear why the judge included instructions on the issue. 

Nevertheless, defendant does not argue including this part of the model charge 

in the final jury instructions, or including confining the children "for ransom or 
15 A-5670-18

In addition to his claim of insufficient evidence, defendant argues Juan Sr. was 

himself a victim and could not be considered the "third person" whose action or 

inaction the assailants expected to compel by confining the children. 

Rule 3:18-1 permits the court on defendant's motion or "its own initiative" 

to consider the sufficiency of the evidence. "In determining whether . . . the 

State presented sufficient evidence for the case to go to the jury, 'we apply a de 

novo standard of review.'" State v. Cruz-Pena, 243 N.J. 342, 348 (2020) 

(quoting State v. Williams, 218 N.J. 576, 593–94 (2014)). "We must determine 

whether, based on the entirety of the evidence and after giving the State the 

benefit of all its favorable testimony and all the favorable inferences drawn from 

that testimony, a reasonable jury could find guilt beyond a reasonable doubt." 

Williams, 218 N.J. at 594 (citing State v. Reyes, 50 N.J. 454, 458–59 (1967)).

Obviously, the terms ransom and hostage are related. The payment of a 

ransom implies the anticipated release of someone being held as a hostage. A 

person holding a hostage, however, need not intend to compel another to make

a payment; as the model charge clearly states, a hostage may be held to compel 

as a shield or hostage" on the verdict sheet, was plain error. We therefore do 

not consider it.
16 A-5670-18

another to take or refrain from taking action, which need not involve the 

payment of anything of value. 

The reasonable inferences from the testimony of the children, which we 

only briefly summarized above, permitted the jury to conclude beyond a 

reasonable doubt the assailants were holding the children as hostages to 

convince Juan Sr. to part with money the assailants believed he had hidden in 

the house. Defendant's argument that Juan Sr. could not be the "third person" 

referenced in the model charge's definition of "ransom" because he was a victim 

himself, is specious. Juan Sr. was not the victim of the kidnapping. None of 

the out-of-state decisions cited by defendant compel a different conclusion. To 

the extent we have not otherwise addressed them, defendant's other arguments 

on this point lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

IV.

Prior to the State resting, the judge conducted a Sands/Brunson6 hearing 

to determine if the prosecutor could introduce evidence of defendant's six prior 

Pennsylvania criminal convictions for impeachment purposes under N.J.R.E. 

609 (the Rule) if defendant testified. Defendant's first three convictions 

6 State v. Sands, 76 N.J. 127, 144–45 (1978); State v. Brunson, 132 N.J. 377, 

390–91 (1993).
17 A-5670-18

occurred on June 19, 1992.7 His fourth conviction, from July 20, 1993, was for 

conspiracy to commit robbery and robbery, second and first-degree felonies 

respectively; defendant was sentenced to a prison term of between two and five 

years. Defendant's fifth conviction, from August 31, 1999, for carrying a 

firearm in public and carrying a firearm without a license, led to a prison term 

of between eighteen and thirty-six months. Defendant's sixth conviction for 

assault, classified as a second-degree misdemeanor, occurred nearly fourteen 

years later, on April 15, 2013, and resulted in a probationary sentence.8 The 

State proposed that all six convictions would be sanitized to reflect only their 

date of the offense. its degree, and the sentence defendant received. Defense 

7

 The offenses underlying defendant's first, second, and third convictions were 

committed on separate dates, but the judgment of conviction was entered on a 

single date. The first conviction was for carrying a firearm on September 26, 

1991, a first-degree misdemeanor, for which defendant was sentenced to a twoyear term of probation. The second was for theft by receiving stolen property

on May 5, 1991, a third-degree felony, for which he was sentenced to a threeyear term of probation. The third conviction was for the unauthorized use of a 

motor vehicle and theft by receiving stolen property on January 23, 1992, both 

felonies, for which defendant was sentenced to a prison term between eleven 

months-fifteen days and twenty-three months, to be followed by a two-year term 

of probation. 

8

 Citing State v. G.P.N., the prosecutor argued this misdemeanor simple assault 

conviction could be considered a prior criminal conviction under N.J.S.A. 

2C:44-4(c) because it carried a maximum sentence of two years imprisonment 

in Pennsylvania. 321 N.J. Super. 172, 175–76 (App. Div. 1999). Defendant 

does not contest that assertion on appeal.
18 A-5670-18

counsel argued that except for the 2013 conviction, defendant's prior convictions 

were too remote and therefore inadmissible.

Citing Sands, Brunson, and our decision in State v. Lagares, 247 N.J. 

Super. 392, 396 (App. Div. 1991), rev'd on other grnds., 127 N.J. 20 (1992), the 

judge noted, "Ordinar[il]y evidence of a prior conviction should be admitted and 

the burden of proof to justify exclusion rests on the defense." The judge said,

"[t]he key to exclusion is remoteness," not "determined by the passage of time 

alone," but after consideration of other factors like "[t]he nature of the 

convictions," which is "a significant factor." The judge found it "appropriate 

. . . to consider intervening convictions between the past conviction and the 

crime for which defendant is being tried." If a defendant "has an extensive prior 

criminal record . . . his burden should be heavier . . . in an attempt to exclude all 

such evidence." The judge said, "whether the defendant testifies or not is purely 

his decision." 

After reviewing the six prior convictions, the judge said: 

We're now to commence trial in 2019. Bridging the gap 

is a colloquial term for the issue of whether or not 

through the course of time the intervening arrests bring 

in the later convictions . . . evidencing a continued 

period of criminality on the part of the defendant. 

. . . .
19 A-5670-18

The question . . . here is whether or not the gap 

between the 1999, the number five conviction, and 

number six, the 2013 simple assault, is bridged in a 

meaningful way. Not just simply looking at the ten 

years that [N.J.R.E.] 609 calls for us to look at, but 

based upon a review of the totality of the defendant's 

contact with the criminal justice system.

. . . .

In considering the totality of the defendant's 

criminal history, the Court finds that the period 

between '99 and that conviction and the sentence 

[defendant] received is sufficiently bridged to the 2013 

conviction of simple assault such that the entirety of the 

defendant's criminal history can come before the jury 

for a determination of credibility.

[(Emphasis added).]

Defense counsel sought clarification, noting that amendments to the Rule 

made clear the State had the burden of proof regarding any conviction that was 

more than ten years' old, and the decision in Lagares predated 1993 amendments 

to the Rule. The judge agreed the Rule had been modified and it was the State's 

"burden . . . to put forth the appropriateness of each of the convictions and 

establish each of the convictions." He concluded the State had "given [him] all 

the information that [he had]," and he was not asking "the defense[] for anything 

to support why [the prior convictions] should not be admitted." (emphasis 

added).
20 A-5670-18

Defendant elected not to testify. In summation, defense counsel argued 

defendant did not match the physical descriptions given by the children of the 

assailants. He also highlighted the investigation of the criminal gang from 

Philadelphia and its leader's conviction of a nearby home invasion, as well as 

another gang member's resemblance to the composite drawing. Counsel noted 

investigators assembled a list of individuals affiliated with the gang, but 

defendant's name was never on that list. 

In trying to downplay the significance of the fingerprint and DNA 

evidence, defense counsel noted expert opinion could and should be rejected in 

this case. He questioned why it was not until 2015, when the State secured 

defendant's buccal swab, that the State matched the forensic evidence to 

defendant. Defense counsel suggested DNA could be transferred onto physical 

evidence, and even though investigators submitted evidence directly related to 

the crimes for analysis, for example the cords used to bind the victims, 

defendant's DNA was allegedly only located on items that had nothing to do 

with the crimes. He urged the jury to consider defendant may have been in the 

Cuevas residence on a date other than when the crimes occurred.

The jury deliberated for a short time on Thursday, May 2, 2019, before 

sending the judge a note asking for further instructions. With the agreement of 
21 A-5670-18

counsel, the judge told the jurors to return on Monday, May 6, at which time he 

provided them with the instructions they requested and told them to continue 

deliberations. We have no additional transcripts of proceedings until May 13, 

2019, when the judge dealt with some juror issues and there was some playback 

of testimony. On May 14, 2019, at a time undisclosed by the transcript, the jury 

returned the verdicts we set out above.

At sentencing, defendant moved for a new trial arguing the judge erred in 

ruling the State could introduce all of defendant's prior convictions. Counsel 

also contended the judge hamstrung his third-party guilt defense by limiting 

testimony about Cuevas Sr.'s prior drug conviction and portions of the 

investigation that intimated the assailants were aware Juan Sr. was receiving a 

large shipment of drugs. Defense counsel also contended the ruling regarding 

defendant's prior convictions "prevented [his] client from taking the stand and 

testifying on his behalf," specifically that he was "in the house to purchase drugs 

from the alleged victim," which explained the presence of defendant's DNA and 

fingerprint.

The judge concluded defendant presented no new arguments and the 

rulings made at trial did not "preclude[] the defendant from taking the stand and 

placing that defense on the record." The judge examined what "defendant was 
22 A-5670-18

attempting to do through [the proffered] testimony," i.e., testify "he was a drug 

dealer . . . at the victim's home to conduct a drug transaction." The judge 

reasoned: "So, what's the difference if this criminal record came forth before 

the jury?" He denied the motion for a new trial and sentenced defendant.

Before us, defendant argues the judge misapplied N.J.R.E. 609(b) and 

erroneously ruled the State could impeach defendant with all six prior criminal 

convictions. He contends no published decision has permitted the State to use 

convictions that were more than twenty years old to impeach a defendant's 

credibility as a witness. Defendant further contends this ruling effectively kept 

him from testifying and explaining why the only inculpatory evidence in the 

case — his fingerprint and DNA — were found at the Cuevas home. 

We apply a deferential standard of review to the court's decision to permit 

the State to use prior criminal convictions for impeachment. State v. T.J.M., 

220 N.J. 220, 234 (2015). "However, we do not defer to a ruling that is based 

on a mistaken interpretation of an evidence rule, or that misapplies the rule." 

State v. R.J.M., 453 N.J. Super. 261, 266 (App. Div. 2018). We agree the judge 

mistakenly exercised his discretion by ruling the State could use all six prior 

criminal convictions to impeach defendant if he chose to testify.

 
23 A-5670-18

Prior to 2014, the Rule presumptively admitted prior criminal convictions 

for impeachment purposes "unless excluded by the judge as remote or for other 

causes." State v. Harris, 209 N.J. 431, 442 (2012) (quoting N.J.R.E. 609 

(2012)). The Court in Harris recognized a significant difference between the 

Rule and the Federal Rules of Evidence (F.R.E.) 609, which limited the use of 

any conviction that was more than ten years old. Id. at 444. The Court referred 

"[t]he question of whether N.J.R.E. 609 should be modified . . . to the Supreme 

Court Committee on Evidence." Id. at 445. 

The Committee on the Rules of Evidence (the Committee) recommended 

significant changes to the Rule, which were subsequently adopted by the Court 

effective July 1, 2014, and remain largely unchanged since.9 See Biunno, 

Weisbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 609 

(2021–22). Under its current iteration, any witness's credibility may be 

presumptively impeached through prior convictions under subsection (a) of the 

Rule, subject only to exclusion under N.J.R.E. 403 or subsection (b). 

9 The Court adopted minor "restyling" amendments to the Rules of Evidence 

effective July 1, 2020, after the trial in this appeal. The effect of those

amendments are not significant to our analysis, so we use the current version of 

the Rule throughout this opinion. 
24 A-5670-18

Admission of a conviction more than ten years old triggers a different 

analysis under subsection (b), which provides:

Use of Prior Conviction Evidence After Ten Years.

(1) If, on the date the trial begins, more than ten years 

have passed since the witness's conviction for a crime . 

. . then evidence of the conviction is admissible only if 

the court determines that its probative value outweighs 

its prejudicial effect, with the proponent of that 

evidence having the burden of proof.

(2) In determining whether the evidence of a conviction 

is admissible under subparagraph (b)(1) of this rule, the 

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,

(iii) how remote the conviction is in time,

(iv) the seriousness of the crime.

[N.J.R.E. 609(b) (emphases added).]

"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 
25 A-5670-18

would not be more prejudicial than probative." R.J.M., 453 N.J. Super. at 270

(citing N.J.R.E. 609 (b)(1)).

Here, when the State first made the proffer, the judge's analysis was 

clearly mistaken because he applied a presumption of admissibility to 

convictions more than twenty years in the past, and he mistakenly allocated the 

burden to exclude the convictions from 1992, 1993, and 1999 to defendant. The 

judge corrected himself when defense counsel reminded him the Rule placed the 

burden on the State to justify admissibility of a conviction that was more than 

ten years old.

Since all but the 2013 simple assault conviction were subject to subsection 

(b) of the Rule because they were more than ten years old when the trial began, 

the judge was required to first determine if the State, as proponent of the 

evidence, demonstrated the probative value of each conviction from 1992, 1993,

and 1999 "outweigh[ed] its prejudicial effect." N.J.R.E. 609(b)(1). The judge 

never made such a finding. Thus, even though the judge properly reallocated 

the burden to the State, nothing reflects his understanding of the actual burden 

the State was required to shoulder.10

10 Earlier, the judge said a prior conviction should be admitted "[u]nless . . . the 

[c]ourt finds that it's probative force because of its remoteness . . . will create 

undue prejudice." 
26 A-5670-18

In making that determination, the judge's discretion should have been

guided by the non-exhaustive list of factors "the court may consider" contained 

in N.J.R.E. 609(b)(2), the first of which is "whether there are intervening 

convictions for crimes or offenses." N.J.R.E. 609(b)(2)(i). The judge referred 

to this by the colloquial term, "[b]ridging the gap."

The concept has its origin in Sands, decided at a time when the Court, 

construing then-existing N.J.R.E. 4, said: 

Ordinarily evidence of prior convictions should be 

admitted and the burden of proof to justify exclusion 

rests on the defendant. 

The key to exclusion is remoteness. Remoteness 

cannot ordinarily be determined by the passage of time 

alone. The nature of the convictions will probably be a 

significant factor. . . . Moreover, it is appropriate for 

the trial court in exercising its discretion to consider 

intervening convictions between the past conviction 

and the crime for which the defendant is being tried. 

When a defendant has an extensive prior criminal 

record, indicating that he has contempt for the bounds 

of behavior placed on all citizens, his burden should be 

a heavy one in attempting to exclude all such evidence.

[76 N.J. at 144–45 (emphasis added).] 

Here, the gap to be bridged was the twenty years between the 1999 conviction 

and the 2019 trial. The only intervening conviction was the 2013 conviction for 

simple assault, which defendant conceded was admissible if he testified. 
27 A-5670-18

However, that was not how the judge saw it. As noted, he explained: "The 

question . . . here is whether or not the gap between the 1999, the number five 

conviction, and number six, the 2013 simple assault, is bridged in a meaningful 

way." This was clearly error.

The Rule also instructs the judge to consider "the number, nature, and 

seriousness of those [intervening] crimes." N.J.R.E. 609(b)(2)(i). Here, there 

was only one intervening crime between 1999 and the start of trial, and that was 

the simple assault conviction in 2013 which, despite defendant's prior criminal 

convictions, resulted in the Pennsylvania court imposing a probationary 

sentence. None of defendant's convictions in the 1990s were for crimes

"involv[ing] . . . dishonesty, lack of veracity, or fraud," and, as already noted, 

the last of those convictions was entered twenty years prior to the start of 

defendant's trial. N.J.R.E. 609(b)(2)(ii)11 and (b)(2)(iii). Undoubtedly, some, 

11

 In recommending the 2014 amendments to the Rule, the Committee 

specifically decided not to "demarcate[e] which crimes are crimes of 

dishonesty." 2011-2013 Report of the Supreme Court Committee on the Rules 

of Evidence, March 15, 2013, at 5. However, in construing similar language in 

F.R.E. 609 permitting impeachment of a witness with a conviction of a crime 

less than ten years old involving a "dishonest act or false statement," F.R.E. 

609(a)(2), the Third Circuit concluded such crimes involve "communicative or 

expressive dishonesty," and robbery was not such a crime, Walker v. Horn, 385 

F.3d 321, 334 (3d Cir. 2004).

 
28 A-5670-18

but not all, of defendant's convictions from the 1990s were for serious crimes 

and resulted in prison terms. N.J.R.E. 609(b)(2)(iv).

We are firmly convinced that proper application of the Rule should have 

resulted in the exclusion for impeachment purposes of all but defendant's 2013 

simple assault conviction had defendant testified at trial. That conclusion, 

however, does not finish our inquiry. We must consider whether the error was

harmless. State v. Hedgespeth, 249 N.J. 234, 247 (2021).

We cannot re-trace more capably than Justice LaVecchia the 

jurisprudential path our Court has followed in rejecting United States Supreme 

Court precedent and concluding a defendant's decision not to testify because of 

an adverse ruling under the Rule is reviewable under the harmless error standard. 

Id. at 248–50.

12 As the Court reiterated in Hedgespeth, "[T]here can be 

12

 In Luce v. United States, the Supreme Court held "that to raise and preserve 

for review the claim of improper impeachment with a prior conviction, a 

defendant must testify." 469 U.S. 38, 43 (1984). Among other reasons, the 

Court noted "[r]equiring that a defendant testify in order to preserve Rule 609(a) 

claims will enable the reviewing court to determine the impact any erroneous 

impeachment may have had in light of the record as a whole." Id. at 42.

Several state courts have similarly restricted appellate review of trial court 

rulings admitting a defendant's prior convictions for impeachment purposes 

when the defendant has elected not to testify at trial. See, e.g., People v. Patrick, 

908 N.E.2d 1, 11 (Ill. 2009); State v. Smyers, 86 P.3d 370, 374 (Ariz. 2004);

State v. Raydo, 713 So. 2d 996, 1000 (Fla. 1998); People v. Sims, 853 P.2d 992, 
29 A-5670-18

situations, although likely unusual, in which an erroneous N.J.R.E. 609 ruling 

may be deemed harmless even if that ruling resulted in the defendant's deciding 

not to testify." Id. at 250 (emphasis added) (citing State v. Whitehead, 104 N.J. 

353, 359–60 (1986)). 

In Hedgespeth, police officers on surveillance observed the defendant in 

possession of gun and radioed his description to other officers. 249 N.J. at 240–

41. Those officers apprehended defendant and retrieved a gun, but the 

surveillance team officers did not go to the scene and no fingerprints were found 

on the gun or its magazine of ammunition. Id. at 241. At the 2017 trial, over 

the defendant's objection based on remoteness, the trial judge admitted the 

defendant's prior convictions from 2001 and 2005 for drug offenses. Id. at 242. 

The defendant decided not to testify, although he disputed the facts in the 

1024 (Cal. 1993); People v. Finley, 431 N.W.2d 19, 27 (Mich. 1988); State v. 

Gentry, 747 P.2d 1032, 1036 (Utah 1987); State v. Harrell, 506 A.2d 1041, 

1045–46 (Conn. 1986); State v. Glenn, 330 S.E.2d 285, 286 (S.C. 1985); State

v. Means, 363 N.W.2d 565, 569 (S.D. 1985); Yanez v. State, 187 S.W.3d 724,

734 (Tex. App. 2006); Reed v. Commonwealth, 366 S.E.2d 274, 277 (Va. Ct. 

App. 1988); State v. Garza, 704 P.2d 944, 949 (Idaho Ct. App. 1985).

As we note, our Court has spoken with clarity and held that a defendant's 

election not to testify does not foreclose appellate review of the trial judge's 

evidentiary decision regarding the admission of prior criminal convictions for 

impeachment purposes. 
30 A-5670-18

officers' testimony during colloquy with the judge regarding that decision. Id.

at 243. 

On appeal, we concluded admitting the defendant's prior convictions was 

error, but we also determined the error was harmless. Id. at 244 (citing State v. 

Hedgespeth, 464 N.J. Super. 421, 437–38 (App. Div. 2020)). The Court rejected 

the defendant's argument that "an erroneous ruling that pushes a criminal 

defendant not to testify can never be harmless," id. at 247, and instead reaffirmed 

"that in limine N.J.R.E. 609 rulings shall continue to be reviewed under the 

harmless-error standard," id. at 252. The Court said, "To determine whether 

admission of evidence constitutes harmless error, the relevant inquiry is whether 

the purported error 'is of such a nature as to have been clearly capable of 

producing an unjust result.'" Ibid. (emphasis added) (quoting State v. Kuchera, 

198 N.J. 482, 501 (2009)).

We note, however, the effect of the trial court's ruling in Hedgespeth was 

not the erroneous admission of evidence before the jury. Indeed, the Court 

seemingly recognized this distinction immediately thereafter by positing the 

issue in Hedgespeth as whether "the jury's failure to hear defendant's testimony

could have produced an unjust result." Ibid. (emphasis added). In other 

circumstances, the Court has recognized the "[e]xclusion of testimony . . . which 
31 A-5670-18

is central to a defendant's claim or defense, 'if otherwise admissible, cannot be 

held to be harmless error.'" State v. Scott, 229 N.J. 469, 484 (2017) (quoting 

State v. Kelly, 97 N.J. 178, 202–03 (1984)). And, in State v. R.Y., the Court 

held the exclusion of statements made by the victim to another witness was not 

"harmless error," because it contradicted the victim's testimony at trial and other 

statements she made to the State's witnesses. 242 N.J. 48, 71–72 (2020).

The Hedgespeth Court concluded the trial court's ruling that the State 

could impeach the defendant with his two prior convictions was harmful error 

and explained:

The key testimony against defendant was that of two 

police officers who testified that they saw the gun in 

defendant's waist band and that a gun was later 

recovered by other officers near where defendant and 

others were apprehended. The State introduced the gun 

itself into evidence; however, there was no fingerprint 

or DNA evidence on the gun.

Had the trial court not erroneously admitted the 

prior convictions, defendant argues he could have more 

forcefully challenged the detectives' credibility as to 

whether they saw the gun on his waistband. By not 

testifying, defendant was only able to cast doubt on the 

officers' accounts through cross-examination; he was 

unable to effectively offer a counter theory of the case. 

Moreover, the jury was not able to consider 

Hedgespeth's demeanor and credibility in delivering his 

theory of the case. 
32 A-5670-18

No doubt, the strongest evidence against 

defendant is that the State produced the gun in 

evidence. But, without indisputable evidence linking

defendant to the gun — except through officer 

testimony — the admission of the gun did not 

necessarily cement the State's case against defendant. 

The mere fact that the State may characterize a potential 

defense theory seeking to explain away the gun as 

"implausible" is not reason to hold that the trial court's 

error was harmless. Determining implausibility "is in 

the sole province of the jury. Judges should not intrude 

as the thirteenth juror." 

[249 N.J. at 252–53 (first and third emphases added) 

(quoting Scott, 229 N.J. at 485).]

We apply these principles to the facts in this case and conclude "the jury's failure 

to hear defendant's testimony could have produced an unjust result." Id. at 252. 

Before us, the State contends the trial judge's evidentiary ruling permitting 

the impeachment of defendant using his six prior convictions, only one of which 

was entered within twenty years of the trial, was harmless beyond a reasonable 

doubt. The State contends defendant's claim that he was in the house on an 

earlier date to purchase drugs was belied by the presence of his DNA in two 

different rooms in the house, including on an orange juice container in a secondfloor bathroom wastebasket, i.e., the floor where the homicide and other crimes 

largely occurred. 
33 A-5670-18

Undoubtedly, the forensic evidence placing defendant at the scene of the 

crimes was powerful. See, e.g., State v. Pickett, 466 N.J. Super. 270, 306 (App. 

Div. 2021) (recognizing "DNA evidence is powerful and compelling"). But it 

was the only evidence linking defendant to the crimes, and one only needs to

read the prosecutor's summation to understand there was no other corroborating 

evidence tying defendant to the commission of these heinous crimes. 

As the Court clearly said in Hedgespeth, the judge's ruling denied 

defendant an opportunity "to effectively offer a counter theory of the case,"

something particularly important given the State's forensic evidence, and the 

"implausibility" of defendant's potential testimony is not for us to judge. 249 

N.J. at 252. We are therefore compelled to reverse defendant's convictions and 

remand the matter for a new trial. Our disposition does not require us to address 

defendant's sentencing arguments.

Reversed and remanded for a new trial. We do not retain jurisdiction.