On December 24, 2014, the Appellate Division allowed — for the first time in New Jersey — a trial judge to wait to decide on the prosecutor’s request to admit evidence of another crime until after the defendant testified. Ultimately, the defendant decided not to testify since she did not know if evidence of another alleged crime would be admitted. http://www.judiciary.state.nj.us/opinions/a4061-12.pdf
The defendant, Maytee Cordero, and another person were inside the Apple Store at Menlo Park Mall in 2011. The other person, Chris Perez, removed various items and placed them into two large shopping bags. According to the Apple Loss Prevention officers, the defendant and Perez then left the store without paying and the Apple employees erased any video of the incident.
The codefendant Perez, who had several prior shoplifting convictions, pleaded guilty and received a three-year prison sentence.
Prior to the trial, the defendant’s lawyer sent a letter to the prosecution saying that the codefendant Perez would testify that he stole the items without her knowledge. The letter explained that Perez was planning to testify that he ran into Cordero in the store and she asked him to put her phone number into his phone. The letter said that he would testify that he asked her to hold the bags momentarily without her knowing they contained the stolen merchandise.
The prosecutor filed a motion to allow the introduction of a video of a previous alleged shoplifting incident at Target involving the defendant to disprove her defense that she took the Apple items by mistake. Importantly, the defendant had never been convicted on this incident since she plead not guilty and she had been admitted into the Pre-Trial Intervention program. Interestingly, the opinion said that the defendant had never seen this Target video until during her trial.
After jury selection, the defendant’s lawyer said she would not call Perez as a witness. The prosecutor again asked Judge Joseph Paone of Middlesex County Superior Court to rule on the Target video. The Judge decided that prosecutors could not use the video from Target in their case in chief, but he withheld decision on its use for rebuttal.
Judge Paone stated he was not ruling on the video and gave Cordero until the next day to decide whether she intended to testify. The next morning, the judge watched the video in open court, which allowed Cordero to see it for the first time.
Judge Paone reviewed the four prongs of the test for determining the admissibility of other crimes evidence, as set forth in State v. Cofield, 127 N.J. 328, 338 (1992):
The evidence of the other crime must be admissible as relevant to a material issue;
It must be similar in kind and reasonably close in time to the offense charged;
The evidence of the other crime must be clear and convincing; and
The probative value of the evidence must not be outweighed by its apparent prejudice.
The judge said that he would not rule on the evidence until after the defendant testified. The judge said, “without having the benefit of her testimony . . . all I can do is indicate to you that there . . . would be a likelihood that. . . this evidence would be admissible.”
Cordero opted not to testify and was convicted.
The Appellate Division explained that this situation had no precedent in New Jersey, but decided to uphold the judge making a tentative ruling before the defendant testified. “We conclude that a trial court, in its discretion, may await the close of a defendant’s case before determining the admissibility of 404(b) evidence that the state seeks to introduce to rebut the defendant’s claim of lack of intent or mistake.”
Allowing a judge to decide not to decide means the defendant is forced to choose whether to testify, without knowing if the prosecution would be allowed to bring up another crime in front of the jury. The lawyer for Cordero is seeking a review by the Supreme Court.