NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2152-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANDRO VARGAS,

Defendant-Appellant.

_______________________

Submitted November 4, 2019 – Decided June 4, 2020

Before Judges Messano, Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 15-08-

1756.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Susan Brody, Assistant Deputy Public 

Defender, of counsel and on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Stephen Anton 

Pogany, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

APPROVED FOR PUBLICATION

June 4, 2020

APPELLATE DIVISION
A-2152-17T1 2

A jury found defendant guilty of first-degree purposeful murder of his 

former girlfriend, and the court sentenced him to a thirty-year sentence, with a 

thirty-year parole disqualifier. On appeal, defendant challenges two 

evidentiary rulings: (1) the court's decision to admit the victim's daughter's 

testimony that, a few months before the homicide, defendant threatened the 

victim, "if she wasn't with him she wouldn't be with anybody," and (2) the 

court's denial of defendant's motion to exclude his two custodial statements. 

He contends the probative value of the threatening statement was substantially 

outweighed by its prejudice. And he contends the use of Spanish-speaking 

officers, rather than neutral interpreters, rendered his waiver of his Miranda1

rights involuntary.

We reject both these arguments and affirm. Only the first argument 

warrants our extended discussion. For reasons we discuss below, we conclude 

the court reached the right result – admitting into evidence the threatening 

statement – but for the wrong reason. The court held the statement was 

admissible as a statement of a party opponent under N.J.R.E. 803(b)(1), 

despite also finding it inadmissible under N.J.R.E. 404(b). We conclude the 

statement had to satisfy both rules, and it did; therefore, there was no error in 

admitting it into evidence at trial.

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
A-2152-17T1 3

I.

According to the State's proofs, Patricia Hiciano had an intimate, but 

rocky, relationship with defendant, who was married. She was the single 

parent of four children, and worked at a Newark restaurant. A few months 

before the homicide, defendant pushed his way into Hiciano's home. Hiciano 

and defendant argued. Hiciano's teenage daughter testified at a pre-trial 

N.J.R.E. 104 hearing that defendant was drunk, and she overheard him threaten 

her mother, "if you can't be with me, then you can't be with anyone." At trial, 

the daughter testified, "he said . . . he was tired of telling her that if she wasn't 

with him she wouldn't be with anybody." Defendant confirmed in his custodial 

interview that he was last intimate with Hiciano about five months before the 

murder.2

The night of the murder, defendant showed up at Hiciano's restaurant 

shortly before her shift ended. He ate dinner at the bar and drank several 

beers. A friend of defendant, Jose Luis Silva Lopez, happened to enter, and 

joined him. Lopez testified at trial that defendant told him he intended to have 

sex with Hiciano at a hotel later than evening. But, incongruously, he showed 

2

 The daughter testified at the Rule 104 hearing that defendant threatened her 

mother four to five months before she was killed, but expressed some 

uncertainty about the precise date. At trial, she agreed with the prosecutor's 

suggestion that the threat was made "a few months" before the homicide, but 

could not pinpoint the date on cross-examination.
A-2152-17T1 4

Lopez a photo of Hiciano with her new boyfriend. Lopez testified that 

defendant appeared jealous. Defendant also told Lopez that he had a 

compromising video of Hiciano that could get her in trouble with her boss.

Eventually, Lopez and Hiciano accepted rides home from defendant. He 

had his wife's Honda. Defendant dropped Lopez off first. The State 

established defendant's whereabouts thereafter based largely on recordings 

from video surveillance cameras at various points along his route. After 

dropping off Lopez, defendant drove to a hotel. But, rather than enter with 

defendant, Hiciano left the car and walked away. Defendant followed slowly 

in the car, then drove off as Hiciano went to a Domino's pizzeria to buy a pizza 

she promised her children. She waited there for over twenty minutes, and then 

walked roughly half a mile home with the pizza. As she approached her 

building, minutes before 10:30 p.m., she spoke by phone to a male friend.3 

She told him she would call him once she arrived home. But she never did.

While Hiciano was getting her pizza, defendant was recorded parking 

and then exiting his car around the block from her building. He had plenty of 

time to reach her apartment building to await her arrival. Shortly after 10:30 

p.m., a resident of the first floor apartment heard a scuffle in the vacant 

3 The friend testified at trial that he had known Hiciano for two or three 

months, but he did not expressly state whether they had a romantic 

relationship.
A-2152-17T1 5

apartment above her, including muffled screams and the sound of athletic 

shoes – like those defendant wore that night – squeaking on the floor. A few 

minutes later, defendant was recorded returning to his car and leaving. About 

an hour later, he was recorded arriving at his home, although a drive directly 

from Hiciano's home to defendant's was much quicker.

First confronted by Hiciano's family, and then by the police, defendant 

gave a series of inconsistent statements about his whereabouts. That night, 

Hiciano's daughter fell asleep thinking her mother was simply delayed. The 

next morning, after discovering her mother had not returned at all, she 

telephoned defendant, but the call went to voicemail. She then called one of 

her mother's co-workers who happened to be with defendant at the time, and 

he put him on the phone. The daughter asked defendant if he had seen her 

mother. He lied that he had not seen her in a while. He then pretended he had 

a bad connection, and hung up. The daughter then reported her mother 

missing to the police.

The same day, Hiciano's sister, after some difficulty, reached defendant 

by telephone to inquire about her sister. This time, defendant lied that he 

dropped her off in front of her apartment the night before, drove off, and then 

never saw her again.
A-2152-17T1 6

In the course of an unrelated investigation, five days after Hiciano failed 

to come home, police discovered her body in a vacant second-floor apartment. 

An expert testified she had been strangled to death. Another expert testified 

that DNA matching defendant's was found under her fingernails. The State 

also presented evidence that small pieces of debris found on the Honda's 

driver's side floor matched debris from the apartment where Hiciano was 

killed.

When first questioned by police, defendant insisted he dropped Hiciano 

off across the street from her building. He said a group of men and a woman 

had congregated there, evidently suggesting they may have been the killers. 

Over the course of two interviews, defendant shifted his story as police 

confronted him with what they had learned from the video surveillance and 

other aspects of their investigation. He ultimately insisted he last saw her soon 

after she left his car in front of the hotel. He maintained that Hiciano had 

proposed to have sex with him, but she changed her mind, got out of his car, 

and walked away from him. He denied going into her building, and he denied 

killing her.

Defendant did not testify or present any defense witnesses. Defense 

counsel argued in summation that the police planted the debris in defendant's 

car. She contended that Hiciano would not have gone to the second-floor 
A-2152-17T1 7

apartment willingly with defendant, but no witness testified hearing a struggle 

on the stairs or in the hallway, and the pizza dinner sat undisturbed. She also 

asserted discrepancies in the State's timeline. She suggested the DNA 

evidence could have come from prior contacts with defendant; and there was 

insufficient time between Hiciano's arrival, and defendant's departure, to 

commit murder.

The assistant prosecutor reviewed the evidence we have already 

described. He referred to defendant's threatening statement to Hiciano, as 

recounted by her daughter, and asserted that was proof of his motive.

The jury found defendant guilty of purposeful murder.

Defendant raises the following two points on appeal:

POINT I

THE COURT ERRED IN FINDING TESTIMONY 

OF THE VICTIM'S DAUGHTER ABOUT 

DEFENDANT'S PRIOR VERBAL STATEMENT TO 

HER MOTHER ADMISSIBLE.

POINT II

DEFENDANT'S STATEMENTS TO POLICE 

SHOULD NOT HAVE BEEN ADMITTED 

BECAUSE UNTRAINED POLICE OFFICERS 

WERE USED AS SPANISH INTERPRETERS, 

RESULTING IN ERRORS THAT COULD WELL 

HAVE AFFECTED THE OUTOME OF THE TRIAL

A. Amateur interpreters produce unreliable 

translations.
A-2152-17T1 8

B. Using inherently biased police interpreters 

compromises the interrogation.

C. In this specific case, it was evident that the 

integrity of Vargas's statement was compromised and 

that the voluntariness of his waiver cannot be 

presumed.

II.

We reject defendant's contention that the court erred in admitting his 

out-of-court statement to the victim. However, we do so for reasons other than 

those the trial court presented. See Hayes v. Delamotte, 231 N.J. 373, 386-87 

(2018) (stating that "[a] trial court judgment that reaches the proper conclusion 

must be affirmed even if it is based on the wrong reasoning"); see also State v. 

Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).

A.

The trial court rejected the State's argument that defendant's threatening 

statement was admissible under N.J.R.E. 404(b) to prove his motive to kill the 

victim. After a pre-trial N.J.R.E. 104 hearing, the court applied the fourpronged test under State v. Cofield, 127 N.J. 328, 338 (1992).4

 The court 

4 The test requires that other-crimes-or-wrongs evidence be "admissible as 

relevant to a material issue," "similar in kind and reasonably close in time to 

the offense charged," and "clear and convincing"; and "[t]he probative value of

the evidence must not be outweighed by its apparent prejudice." Cofield, 127

N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions of
A-2152-17T1 9

found by clear and convincing evidence that defendant made the statement, as 

the court found the daughter to be credible. The court also found that the 

statement pertained to a material issue – motive. The court expressed some 

uncertainty whether the statement was reasonably close in time, although it 

referred to an act that was similar in kind to the charged offense. However, 

applying the fourth Cofield prong, the court denied admissibility under 

N.J.R.E. 404(b), finding, "[T]here is sufficient other evidence to demonstrate 

defendant's motive for the murder, thus, the apparent prejudice to defendant 

does outweigh the probative value." Nonetheless, accepting the State's 

alternative argument, the court held that defendant's statement was admissible 

because it was a statement of a party opponent under N.J.R.E. 803(b)(1).

Defendant does not challenge the court's ruling that Rule 803(b)(1) 

provided an independent ground for admitting defendant's statement, 

notwithstanding the court's judgment that it failed the Cofield test. Rather, 

defendant contends that the court should have excluded defendant's statement 

because, under N.J.R.E. 403, its probative value was "substantially outweighed 

by the risk of . . . undue prejudice." In the pre-trial hearing, defendant did not 

invoke N.J.R.E. 403 as a separate basis for excluding the statement. So, we 

Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L. J. 135, 

160 (1989)).
A-2152-17T1 10

consider the point as a claim of plain error. See State v. Macon, 57 N.J. 325, 

333 (1971); R. 2:10-2.

In support of his argument, defendant invokes the court's finding, under 

the Cofield test's fourth prong, that the threatening statement's probative value 

was outweighed by its prejudice. Defendant contends that the fourth prong 

balancing and the N.J.R.E. 403 balancing are essentially the same.

Defendant's argument rests on a false premise. The two balancing tests 

are not equivalent. The Cofield prong presents a more rigorous test for 

admitting evidence. The Supreme Court declared that the fourth Cofield prong 

"requires an inquiry distinct from the familiar balancing required under

N.J.R.E. 403: the trial court must determine only whether the probative value

of such evidence is outweighed by its potential for undue prejudice, not

whether it is substantially outweighed by that potential as in the application of

Rule 403." State v. Green, 236 N.J. 71, 83 (2018) (citing State v. Barden, 195

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

For reasons stated below, we reject defendant's contention that the

potential of undue prejudice "substantially outweighed" the probative value of

his threatening statement to the victim. However, we are constrained to review

the court's application of the Cofield factors, because we are convinced the 

trial court erred in holding that a party opponent's statements may be admitted 
A-2152-17T1 11

under the hearsay exception, N.J.R.E. 803(b)(1), even if it is otherwise 

inadmissible as other evidence of crimes, wrongs or acts to prove motive under 

N.J.R.E. 404(b). To be admissible, defendant's statement must satisfy both the 

hearsay exception and N.J.R.E. 404(b). And, even if evidence is "relevant 

under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible

for all relevant evidence," under N.J.R.E. 403. State v. Lykes, 192 N.J. 519,

534-35 (2007) (noting that evidence admissible under N.J.R.E. 404(b) may be

excluded if under N.J.R.E. 403, "its probative value is substantially

outweighed by the risk of (a) undue prejudice, confusion of issues, or

misleading the jury or (b) undue delay, waste of time, or needless presentation

of cumulative evidence").

We conclude the court erred in finding that the statement's prejudice 

outweighed its probative value under the fourth Cofield prong. Necessarily,

the statement did not fail the less demanding prejudice-probativeness weighing

under N.J.R.E. 403, nor did it fail any other Rule 403 test. Therefore,

defendant's statement was admissible because it satisfied N.J.R.E. 404(b) and 

N.J.R.E. 403, as well as N.J.R.E. 803(b)(1).

Testimony that meets an exception to the general exclusion of hearsay, 

see N.J.R.E. 802, may still be excluded on other grounds. By its plain 

language, N.J.R.E. 803 does not affirmatively declare certain hearsay 
A-2152-17T1 12

statements admissible. Rather, N.J.R.E. 803 simply declares that "[t]he 

following statements are not excluded by the hearsay rule," found in N.J.R.E. 

802. That leaves open the possibility of exclusion on other grounds. As the 

Supreme Court Committee Comment states, "[T]he exceptions 'are phrased in 

terms of nonapplication of the hearsay rule, rather than in positive terms of 

admissibility, in order to repel any implication that other possible grounds for 

exclusion are eliminated from consideration.'" 1991 Supreme Court 

Committee Comment to N.J.R.E. 802 (quoting Notes of Advisory Committee 

on Proposed Rules, Note to Fed. R. Evid. 803 (1984)); see also Biunno, 

Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 

803(b)(1) (2019) (noting that "[i]n appropriate cases other constitutional, 

statutory or rule requirements might preclude a statement admissible under 

[N.J.R.E. 803(b)(1)]").

In particular, admissible hearsay must avoid the exclusions found in 

Article IV of our Rules of Evidence. Some hearsay exceptions are grounded in 

the policy judgment that certain out-of-court statements are inherently reliable 

or trustworthy because of the speaker's position or motivation, or the context 

in which the statements were made, among other factors. See State v. Phelps, 

96 N.J. 500, 508 (1984) (stating that hearsay exceptions "are justified 

primarily because the circumstances under which the statements were made 
A-2152-17T1 13

provide strong indicia of reliability"). The exception for statements of a party 

opponent is based on the idea that such statements are usually quite probative, 

see State v. Covell, 157 N.J. 554, 573-74 (1999), and the party, "cannot 

complain of his inability to confront and cross-examine the declarant, since he 

himself is the declarant," State v. Kennedy, 135 N.J. Super. 513, 522 (App. 

Div. 1975).

Yet, Article IV addresses different goals. They include assuring that 

evidence – however trustworthy, reliable, or probative – is relevant, see

N.J.R.E. 402; is not unduly prejudicial, confusing or time-consuming, see

N.J.R.E. 403; and, generally speaking, is not used simply to impugn the 

defendant's character, or to paint the defendant as a bad person, prone to 

commit crimes or bad acts, see N.J.R.E. 404. Applying comparable federal 

rules, one federal court succinctly stated, "All evidence, including evidence 

that qualifies as an exception to the hearsay rule, must be relevant, as defined 

in Article IV of the Federal Rules of Evidence." United States v. Micke, 859 

F.2d 473, 479 (7th 1988).

In State v. Covell, 157 N.J. 554, 573-74 (1999), our Supreme Court 

affirmed the principle that a defendant's statement, which was admissible 

under N.J.R.E. 803(b)(1), still had to pass muster under N.J.R.E. 403 – that is, 

its probative value must not have been substantially outweighed by the risk of 
A-2152-17T1 14

undue prejudice, among other risks. Likewise, a defendant's statement about a 

prior crime, wrong or act – even if it satisfies a hearsay exception – must 

overcome the N.J.R.E. 404(b) hurdle. N.J.R.E. 404(b) is a rule of exclusion. 

Green, 236 N.J. at 84. In other words, the party opponent's statement may not 

be admitted to show propensity to commit a crime; but it may be admitted to 

show motive, among other things, provided the statement is proved by clear 

and convincing evidence; it pertains to a material issue; it is similar in time 

and reasonably close in time in appropriate cases; and the probative value is 

not outweighed by prejudice to the defendant. See Cofield, 127 N.J. at 338.

We have found no reported New Jersey case that expressly states this 

evident principle, but federal courts have recognized that a statement of a party 

opponent, although admissible under federal hearsay rules, must still satisfy 

the constraints on introducing other crimes, wrongs and acts evidence. 

"Although the statements are party admissions under [Federal] Rule [of 

Evidence] 801(d) and thus not hearsay,5they must nevertheless also be 

analyzed for admissibility under Rule 404(b) because they reveal or suggest 

prior criminal conduct." United States v. Oberle, 136 F.3d 1414, 1418 (10th 

5

 Under our rules, a party opponent's statement is hearsay, but admissible 

under an exception to the hearsay rule. N.J.R.E. 803(b)(1). Under the federal 

rule, a party opponent's statement is excluded from the hearsay definition 

itself. Fed. R. Evid. 801(d).
A-2152-17T1 15

Cir. 1998); see also United States v. Simpson, 479 F.3d 492, 502 n.2 (7th Cir. 

2007) (stating, "[t]hat a statement is not hearsay . . . does not answer the 

separate question of whether the statement is precluded as improper propensity 

evidence"), abrogated in part on other grounds in United States v. Boone, 628 

F.3d 927 (7th Cir. 2010); Micke, 859 F.2d at 478-79 (holding that trial court 

properly applied Fed. R. Evid. 403 and 404(b) to defendant's statement 

otherwise admissible under Fed. R. Evid. 801(d)(2)).

B.

Although N.J.R.E. 404(b) presented a separate hurdle for admitting 

defendant's statement, notwithstanding it satisfied a hearsay exception, we are 

convinced that the court erred, and defendant's statement satisfied the Cofield

test for admissibility under N.J.R.E. 404(b). In particular, the evidence did not 

support the court's conclusion that the prejudice to defendant outweighed the 

statement's probative value.6

6 Although the State does not challenge the court's Cofield analysis on appeal 

– indeed, it has conceded its correctness – we discern no impediment in our 

addressing the issue. The interests of justice require it, and defendant fully 

briefed the balancing between the statement's probative value and its prejudice, 

albeit in the context of N.J.R.E. 403. Cf. Office of Employee Relations v. 

Commc'ns Workers of Am., 154 N.J. 98, 108 (1998) (stating that a court will 

ordinarily not introduce an issue the parties have not raised unless the interests 

of justice require it, and the parties have had a chance to address the issue).
A-2152-17T1 16

We are mindful of our deferential standard of review of trial court 

evidentiary rulings. See, e.g., State v. Brown, 170 N.J. 138, 147 (2001). But, 

"[w]e owe the trial court's evidentiary findings reasoned deference, not blind 

deference." State ex rel. A.R., 234 N.J. 82, 106 (2018). Although we may not 

simply substitute our judgment for the trial court's, we shall not affirm an 

evidentiary ruling that represents "a clear error of judgment." State v. Perry, 

225 N.J. 222, 233 (2016) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

We focus on the fourth Cofield prong. The court found that the evidence 

met the materiality prong, and the clear-and-convincing evidence prong. And, 

the temporality aspect of the second prong, about which the court expressed 

some uncertainty, need not apply. As the Court noted in State v. P.S., 202 N.J. 

232, 255 n.4 (2010), the similarity-and-temporality prong is not based in the 

text of N.J.R.E. 404(b); the prong "need not receive universal application in 

Rule 404(b) disputes"; and "[i]ts usefulness as a requirement is limited to cases 

that replicate the circumstances in Cofield." Notably, Cofield involved proof 

that the defendant constructively possessed certain drugs, because he 

possessed similar drugs shortly after the event subject to prosecution. See

State v. Williams, 190 N.J. 114, 131 (2007) (discussing Cofield and limiting 

resort to similarity and temporality prong).
A-2152-17T1 17

In any event, defendant's threat, just a few months before the homicide, 

was not too remote. See State v. Ramseur, 106 N.J. 123, 264-67 (1987) 

(holding that evidence of a threat and assault a year-and-a-half before the 

victim's stabbing death, and of additional threats four months and three months 

before the death, was not too remote to prove motive and intent); State v. T.C., 

347 N.J. Super. 219, 234 (App. Div. 2002) (admitting evidence that defendant 

mistreated child prior to a five-year absence, to demonstrate malice, hatred, 

and intent to harm child, in prosecution that the defendant endangered the 

child's welfare after he returned to the defendant's custody).

Although the fourth Cofield prong is generally the most difficult to 

satisfy, see State v. Barden, 195 N.J. 375, 389 (2008), "evidence of motive or 

intent, 'require[s] a very strong showing of prejudice to justify exclusion,'" 

Green, 236 N.J. at 84 (quoting State v. Garrison, 228 N.J. 182, 197 (2017)); 

Covell, 157 N.J. at 570-71 (affirming that principle). "A wide range of motive 

evidence is generally permitted, and even where prejudicial, its admission has 

been allowed in recognition that it may have 'extremely high probative value.'" 

State v. Rose, 206 N.J. 141, 165 (2011) (quoting State v. Long, 173 N.J. 138, 

164-65 (2002)). "Where the prosecution has a theory of motive that rests on 

circumstantial evidence, that evidence should not be excluded merely because 

it has some capacity to inflame a juror's sensibilities; to hold otherwise would 
A-2152-17T1 18

preclude a jury from inferring a defendant's 'secret design or purpose.'" State 

v. Calleia, 206 N.J. 274, 294 (2011).

The court must consider whether "other less prejudicial evidence may be 

presented to establish the same issue," which would favor exclusion. Green, 

236 N.J. at 84 (quoting Rose, 206 N.J. at 161). Put another way, the court 

must consider whether excluding the evidence would unduly damage the 

State's case. See State v. Stevens, 115 N.J. 289, 303 (1989) (stating that "[t]he 

trial judge should be careful to exclude other torts or crimes evidence . . . 

wherever he can reasonably do so without damaging the plaintiff's or 

prosecutor's case" (quoting 1963 Report of the New Jersey Supreme Court 

Committee on Evidence, Comment on Rule 55, at 103)); see also Barden, 195 

N.J. at 389.

Given its critical role in proving motive or intent, our Supreme Court has 

held evidence of prior threats or assaults admissible despite claims of 

prejudice. See Ramseur, 106 N.J. at 264-67 (holding admissible evidence of 

threats and violence preceding homicide, and noting that "[e]vidence of 

arguments or violence between a defendant and homicide victim has been 

admitted in prior New Jersey cases," and reviewing those cases); see also State 

v. Machado, 111 N.J. 480, 488-89 (1988) (holding admissible, to prove motive 

for murder, testimony that the defendant pushed and yelled at his girlfriend 
A-2152-17T1 19

after she expressed intent to have an abortion). The Court has also held that 

evidence may be admitted under N.J.R.E. 404(b) to prove acts of jealousy 

toward a girlfriend, which established "intent, motive, and the absence of an 

accident" in shooting her male friend. State v. Nance, 148 N.J. 376, 388-89 

(1997).

Our court also reached similar conclusions regarding evidence of prior 

threats, mistreatment, or acts of jealousy. See T.C., 347 N.J. Super. at 234-35 

(holding that prejudice did not outweigh the probative value of prior 

mistreatment evidence, because it was not offered "to show a general 

'disposition' to commit crimes or to show that defendant acted 'in conformity' 

with such a disposition," but was admitted to show the defendant's hostility 

toward the victim and her motive and intent); State v. Angoy, 329 N.J. Super. 

79 (App. Div. 2000) (admitting evidence of prior jealousy-driven assault to 

prove purposeful murder)

7

; State v. Engel, 249 N.J. Super. 336, 372-74 (App. 

Div. 1991) (admitting evidence of the defendant's prior threats and violence to 

7

 In Angoy, the defendant's own statement of why he killed the victim did not 

preclude admission of evidence of prior threats or violence to prove motive. 

The defendant argued passion-provocation manslaughter in lieu of murder. 

The victim's mother testified that one month before the homicide, the 

defendant choked her daughter and stated he did so because she had dated a 

white man. Angoy, 329 N.J. Super. at 85-88. We held the mother's testimony 

was admissible to prove motive or intent, notwithstanding a police officer's 

testimony that defendant said he killed the victim because she gave him a 

sexually transmitted disease. Id. at 83.
A-2152-17T1 20

prove motive for hiring a hit man to kill his wife); State v. Schubert, 235 N.J. 

Super. 212, 224 (App. Div. 1989) (admitting evidence the defendant 

previously threatened his landlords over rent increase to demonstrate motive to 

commit arson after he moved from the premises); State v. Breakiron, 210 N.J. 

Super. 442, 460-61 (App. Div. 1986) (admitting evidence of prior violence and 

threats against girlfriend and former boyfriend to prove jealousy-based motive 

for murder and "to dispel the impression created by [the] defendant's evidence 

that a purposeful or knowing murder was inconsistent with the couple's loving 

relationship"), aff'd in part and rev'd in part on other grounds, 108 N.J. 591 

(1987).

C.

Applying these principles, it was a clear error in judgment for the trial 

court to find that the probative value of defendant's prior threat was 

outweighed by the prejudice. There was little risk that the jury would, based 

on the daughter's testimony, "convict the accused simply because the jurors 

perceive[d] him to be a 'bad person,'" which is the danger that N.J.R.E. 404(b) 

is designed to prevent. See Ramseur, 106 N.J. at 265. No doubt, the statement 

demonstrated that defendant was hypocritical, as he insisted upon his 

paramour's fidelity while he cheated on his own wife; he was domineering, as 

he had no right to control his girlfriend's decision to be intimate with other 
A-2152-17T1 21

men, or to stop being intimate with defendant; and he was threatening, without 

saying how he would stop Hiciano from seeing other men. But, the clear 

import of defendant's statement was to explain why he killed her. He was 

possessive, he would not tolerate rejection, and he would prevent her from 

seeing other people, one way or another. Proof of that state of mind supported 

his motive to kill her. It dispelled his claim in his police interview that she 

was the one who proposed to have sex with him, and that he was not upset 

when she got out of his car, rather than enter the hotel with him. 8

There was no evidence of defendant's motive and intent comparable to 

the daughter's testimony of his threatening statement. Defendant cites Lopez's 

opinion that defendant was jealous; the daughter's general description of 

defendant's failing relationship with her mother; and the video surveillance 

evidence of defendant's whereabouts the night of the homicide. None of that 

measures up to the probative power of defendant's threat. Lopez testified that 

merely defendant's demeanor – not anything he actually said – reflected 

defendant was jealous when he showed Lopez a photograph of Hiciano and her 

8

 The jury did not need to hear defendant's threatening statement to conclude 

he was a despicable man. Putting the statement aside, the jury learned he 

cheated on his wife. He told Lopez that he had compromising photos that 

could get Hiciano in trouble with her boss; photos he could use to pressure her 

to do what he wanted. When her daughter and sister desperately tried to locate 

her, defendant lied to them.
A-2152-17T1 22

new boyfriend. Lopez's opinion was no substitute for defendant's own 

expression of his anger and possessiveness, and his intention to act on those 

feelings.

Likewise, the daughter's testimony that defendant and her mother argued 

often and their relationship became "problematic" could be explained away 

simply as proof the two were no longer suited for each other. It did not 

convey, as defendant's statement did, that he would have Hiciano, or no one 

would. Lastly, the surveillance video recordings demonstrated defendant's 

physical opportunity to commit murder. They also indicated what may have 

been the precipitating event, when the victim got out of the car, rather than 

enter the hotel. But, the evidence did not demonstrate, as clearly as 

defendant's own statement, his state of mind and his intention to kill to her, to 

punish her for rejecting him, and to prevent her from seeing other men. In 

short, there was no compelling evidence to establish defendant's motive for 

murder that was less prejudicial to defendant than his own statement.

In sum, the admission of defendant's threatening statement does not 

warrant reversal. The statement's probative value outweighed its prejudice. It 

should have been admitted under N.J.R.E. 404(b); logically, there would have 

been no basis to exclude it under the less demanding prejudice-probativeness 
A-2152-17T1 23

balancing under N.J.R.E. 403; and defendant suggests no other basis to 

exclude the statement under N.J.R.E. 403.9

III.

We need not comment at length on defendant's argument that his 

custodial statement should have been excluded because Spanish-speaking 

police officers, instead of impartial interpreters, conducted the interrogation. 

Police presented defendant with Spanish-language Miranda forms. They 

reviewed the forms aloud with defendant in his language. And, defendant 

expressed his willingness to speak to police on two occasions. The court 

found defendant "was provided adequate interpretation," and was "fully 

cooperative and responsive." Viewing the totality of the circumstances, the 

court concluded, beyond a reasonable doubt, that defendant waived his rights 

voluntarily, knowingly, and intelligently. We defer to that finding, as it was 

9

 We recognize that the court did not provide the required instruction on the 

limited use of Rule 404(b) evidence. See Rose 206 N.J. at 161 (discussing 

required limiting instruction); Cofield, 127 N.J. at 340-41 (same). As 

defendant has not raised that issue, even as a matter of plain error (since the 

sole ground for exclusion argued on appeal is N.J.R.E. 403), we shall not reach 

the issue, particularly since the failure to give the required instruction does not 

always warrant reversal. See e.g., State v. Loftin, 146 N.J. 295, 394-95 (1996) 

(declining to reverse based on omission of limiting instruction); State v. Hunt, 

115 N.J. 330, 364 (1989) (finding no plain error from failure to deliver 

instruction in view of overwhelming proof of guilt); Schubert, 235 N.J. Super. 

at 224 (declining to find plain error, where the trial court failed to deliver an 

unrequested Rule 404(b) curative instruction); State v. Rajnai, 132 N.J. Super. 

530, 537-38 (App. Div. 1975).
A-2152-17T1 24

supported by sufficient credible evidence. See State v. S.S., 229 N.J. 360, 374 

(2017). The court applied the appropriate legal standard and standard of proof. 

See State v. Bey, 112 N.J. 123, 134 (1988). And, defendant has pointed to no 

misunderstanding, based on the officers' language skills, affecting defendant's 

waiver. See State v. A.M., 237 N.J. 384, 399 (2019) (rejecting argument that 

waiver was not voluntary or knowing, absent evidence that defendant 

misunderstood officers who conducted the interrogation in Spanish). To the

extent not addressed, defendant's remaining points lack sufficient merit to 

warrant discussion. R. 2:11-3(e)(2).

Affirmed.