State v. Paul A. Foglia, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 133 (July 16, 2010) – Convictions reversed.
“Defendant argues that ‘extensive testimony regarding [his] prior bad acts’ was admitted in violation of N.J.R.E. 404(b), that even if the evidence was admissible, its probative value was outweighed by it potential prejudice, see N.J.R.E. 403, and that the judge failed to provide any instructions to the jury on the proper use of such testimony. Defendant identifies this evidence as follows: ‘the fact that defendant had neglected his son, had been unfaithful to his girlfriend, had been employed as a male stripper, had amassed substantial credit card debt, and had forged his son’s name on a credit card application.’ The evidence at issue was introduced largely through Liotta’s testimony and the cross-examination of defendant…. The evidence needed to be evaluated pursuant to Rule 404(b) and most of it should have been excluded because it was irrelevant…. We reject the argument that the testimony was not subject to analysis under Rule 404(b) because it did not involve a ‘crime, wrong or act’ committed by defendant. The analytic paradigm we detailed above has been applied in numerous instances where the other bad conduct evidence did not amount to a crime, or, to use the language of the Rule’s predecessor, a ‘civil wrong.’ See State v. Covell, 157 N.J. 554, 564-71 (1999)…. Moreover, some of the alleged conduct disclosed through the testimony was indeed criminal or quasi-criminal in nature, e.g., that defendant forged an application for a credit card and was a male prostitute. We also reject the State’s assertion that the Rule ‘only prohibits reference to an act that demonstrates a propensity for a similar action,’ and that the jury could not have considered this evidence as demonstrating defendant’s propensity to commit murder. The Rule cannot be read in such a crabbed fashion…. [W]e fail to see how specific instances of defendant’s conduct towards Liotta while she was in the hospital, or his financial circumstances, or his job as a male dancer, or insinuations of prostitution and credit card fraud, were relevant to his motive for killing Lott…. Defendant essentially admitted in his statements to the police, and certainly in his testimony, that Lott hated him and attempted to influence her daughter to sever her relationship with him. Lott may have been well-justified in her evaluation of defendant’s character and in trying to break his hold over her daughter; but whether Lott’s dislike of defendant was deserved or not was irrelevant to defendant’s motive…. [T]he State has not demonstrated how Lott’s animosity toward defendant, well-justified or not, is relevant to prove an essential element of murder, or disprove an element of defendant’s asserted claim. During the trial, in response to defendant’s objection, the prosecutor claimed the evidence showed ‘[t]here were plenty of reasons that [Lott] didn’t like … defendant.’… This argument, however, entirely misstates the relevant inquiry. [T]he fact that defendant engaged in the ‘boorish, indolent and self-indulgent’ instances of specific conduct the State adduced, and further assuming Lott knew about them, we fail to see how that knowledge is relevant to any materially, disputed fact regarding defendant’s asserted passion/provocation manslaughter defense. In reality, the State’s justification for introducing this extensive testimony, as acknowledged in its brief, was to ‘rebut an inaccurate and unfair attack on the victim.’ We assume this means that defendant’s testimony regarding the events that occurred over twelve years, and his conclusion that Lott’s hatred of him was misplaced, was fair game and could be attacked through specific instances of his bad conduct to show that Lott’s hatred was justified. There is no basis for this in our evidence rules…. [W]ithout any guidance, the jury was free to utilize the testimony for an impermissible purpose, i.e., that the defendant was a bad person. Viewed in tandem, we maintain a reasonable doubt that the repeated admission of irrelevant other bad acts evidence may have led the jury to a result that it otherwise may not have reached, and we therefore reverse defendant’s conviction.”