Date: 05-28-2016

Case Style: STATE OF NEW JERSEY v. J.M., JR.

Case Number: A-48-14

Judge: Mary Catherine Cuff

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney: Joseph A. Glyn, Deputy Attorney General

Defendant's Attorney: Jennifer L. Gottschalk, Richard Sparaco

Description: The Court granted leave to appeal to consider whether the
State may introduce in defendant’s trial for sexual assault
evidence of a prior sexual assault of which defendant was
acquitted. Defendant, a massage therapist, was charged with
sexually assaulting a customer while giving her a massage.
Prior to defendant’s trial, the State moved to admit evidence
that defendant had committed a similar sexual assault while
working as a massage therapist in Florida. The trial court
found the evidence admissible under N.J.R.E. 404(b), even though
defendant had been acquitted of the prior crime.
On leave granted, the Appellate Division reversed the trial
court’s decision, finding the evidence inadmissible. State v.
J.M., 438 N.J. Super. 215, 240 (App. Div. 2014). The appellate
panel also held that, when a defendant has been acquitted of a
prior crime, evidence pertaining to that crime “should never be
admitted pursuant to N.J.R.E. 404(b).” Id. at 230. In
addition, the appellate panel held that, when other-crime
evidence plays a “pivotal role” in the State’s case against a
defendant, the jury should be instructed that it must find
beyond a reasonable doubt that a defendant actually committed
the prior offense before that evidence may receive any weight.
Id. at 237-38.

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We affirm the Appellate Division’s judgment insofar as it
held that the evidence of defendant’s prior sexual assault in
Florida is inadmissible under N.J.R.E. 404(b) because it fails
to satisfy the four-factor test established in State v. Cofield,
127 N.J. 328 (1992). We decline to adopt, however, the
appellate panel’s bright-line rule that evidence of a prior
crime for which a defendant was acquitted is always
inadmissible. We also decline to adopt the appellate panel’s
reformulation of the instruction provided to jurors governing
the circumstances under which it may give any weight to
acquitted-crime evidence. Accordingly, we affirm as modified
the judgment of the Appellate Division.
I.
Defendant J.M., Jr., was a massage therapist at a
Washington Township spa. On July 5, 2012, E.S. and her aunt
went to the spa for massage therapy. This was E.S.’s first
massage. When E.S. and her aunt entered the spa, they were
directed to the locker room and instructed to remove their
clothes, place their belongings in a locker, and don spa
provided robes. E.S. then exited the locker room and was
escorted to a private massage room. The spa assigned defendant
to perform the massage. E.S.’s aunt received a massage from
another massage therapist in a separate room.

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Before E.S.’s massage, defendant informed her that he would
wait outside the massage room while she disrobed, got under a
privacy cover, and laid face down. A couple of minutes later,
defendant knocked and, with E.S.’s permission, entered the room.
Defendant massaged E.S.’s back. When he finished, defendant
asked E.S. to turn over and lay on her back, lifting the privacy
cover as E.S. turned beneath it. Defendant then began massaging
E.S.’s front side.
While massaging E.S.’s right thigh, defendant asked if he
could continue to massage E.S. further up her leg. E.S. became
uncomfortable and told him no. Defendant continued to massage
the area, rubbing slightly higher than the location E.S. had
told him was high enough. E.S. flinched and was “a little
freaked out” by defendant’s proximity to her vagina during that
portion of the massage, but attributed her discomfort to her own
inexperience with massages.
Defendant switched to E.S.’s left leg, and again worked his
way progressively from the calf muscles to the thigh muscles.
This time, however, defendant did not wait for permission before
massaging E.S.’s upper thigh. Instead, he asked aloud “can I
get closer?” and immediately answered his own question with “I’m
[going to] get closer.” Moments later, defendant placed his
hand underneath E.S.’s upper thigh and digitally penetrated her
vagina. Defendant repeated the action, at which point E.S.

5
opened her eyes. When E.S. opened her eyes, defendant had one
hand on her head, one hand in her vagina, and was exposing
himself to her. Defendant asked E.S. to perform oral sex on
him, which E.S. refused.
E.S. told investigators that defendant looked puzzled when
she refused his advances, and his demeanor indicated that he had
propositioned clients on other occasions. Defendant then
commenced the standard pleasantries of concluding a massage,
telling E.S. that he hoped she enjoyed the massage and would
revisit the spa. Defendant then handed E.S. her robe and left
the room.
When E.S. exited the massage room, defendant was waiting
right outside the door to provide her with a glass of water.
Defendant followed E.S. to the reception area, and, as they
walked, emphasized his personal relationship with her aunt, who
worked for the spa. Defendant then sat in the reception area,
preventing E.S. from immediately disclosing the assault to her
aunt. Defendant stayed with E.S. while her aunt left for
another treatment. At that point, E.S. fled to the women’s
locker room. While E.S. was in a dressing room within the
women’s locker room, a female spa employee entered and noticed
that E.S. had left personal effects unattended. The spa
employee asked E.S. if she was all right, and E.S. said no.

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Soon thereafter, E.S. reported the sexual assault to a spa
manager.
After E.S. reported the sexual assault, her aunt took her
to the hospital, where a sexual assault nurse examiner examined
her for evidence of sexual assault. The nurse observed trauma
to E.S.’s vagina, which she concluded was caused by digital
penetration.
II.
Defendant was arrested and taken to the Washington Township
Police Headquarters to be interviewed. He denied any sexual
contact with E.S., stating that “nothing out of the ordinary
happened during [the] massage.”
A grand jury charged defendant with one count of second
degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and one count of
fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).
Defendant pled not guilty.
Before trial, the State moved under N.J.R.E. 404(b) to
admit extrinsic evidence of a prior incident in which defendant
had been charged with, but ultimately acquitted of, sexually
assaulting a female spa customer. The trial court conducted a
hearing on this motion at which A.W., the alleged victim of the
prior assault, testified.
A.W. testified that she visited a spa in Orlando, Florida,
on August 26, 2006, where she received a massage from defendant.

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A.W., an experienced spa patron, testified that, during the
massage, defendant moved his hand up her thigh higher than was
normal, massaged her clitoris, and digitally penetrated her
vagina without her consent. After A.W. told defendant to stop,
defendant removed his finger from A.W.’s vagina and stated that
“I just want to make sure the guests are happy.”
A.W.’s description of the alleged assault shared certain
similarities with E.S.’s experience. For example, A.W.
testified that defendant lifted the sheet as she turned from
lying face down to lying on her back, just as he did with E.S.
A.W. explained that this practice was effective but unique --
massage therapists usually “tell you to turn” and the customer
“just kind of flip[s] underneath the sheet.”
The trial court found A.W.’s testimony credible and ruled
it admissible, finding that the proposed testimony satisfied
each prong of the Cofield test. The court stated that the
proposed testimony was relevant to establish motive, intent,
plan, and/or absence of mistake; that the acts alleged by A.W.
were similar in kind and reasonably close in time to the acts
alleged by E.S.; and that, despite defendant’s acquittal, A.W.’s
testimony clearly and convincingly provided evidence that
defendant touched A.W. inappropriately. The court also
determined that the probative value of the proposed testimony

8
outweighed the potential for prejudice to defendant, given the
need for reliable evidence of defendant’s state of mind.
The Appellate Division granted defendant’s motion for leave
to appeal and reversed the trial court’s evidentiary ruling.
J.M., supra, 438 N.J. Super. at 240. The appellate panel held
that the testimony was inadmissible because A.W.’s proposed
testimony failed to satisfy any of the four Cofield factors.
Id. at 221-30. Moreover, the panel held that evidence of a
prior crime of which a defendant was acquitted “should never be
admitted in a later prosecution when offered to show that the
prior charged offense actually occurred.” Id. at 240. In so
holding, the Appellate Division explicitly limited the holdings
of two previous Appellate Division decisions, State v. Yormark,
117 N.J. Super. 315 (App. Div. 1971), certif. denied, 60 N.J.
138, cert. denied, 407 U.S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d
812 (1972), and State v. Schlue, 129 N.J. Super. 351 (App. Div.)
certif. denied, 66 N.J. 316 (1974), which permitted acquitted
act evidence to be used in a subsequent proceeding in certain
circumstances. J.M., supra, 438 N.J. Super. at 230-33.
Finally, the panel held that, where “other-crimes evidence will
play a pivotal role in the adjudication of guilt[,]” the jury
should be instructed that it must find beyond a reasonable doubt
that the other crime actually occurred in order for the other
crime evidence to receive any weight. Id. at 237-38.

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We granted the State’s motion for leave to appeal. State
v. J.M., 221 N.J. 216 (2015).
III.
A.
The State contends that the Appellate Division opinion
should be reversed, and the trial court’s ruling reinstated,
because the proposed testimony satisfies each of the four
Cofield requirements and is therefore admissible under N.J.R.E.
404(b). The State also argues that the appellate panel’s
conclusion that acquitted-act evidence is per se inadmissible
“runs far afield of established interpretations of N.J.R.E.
404(b)” because it usurps the third prong of the Cofield test --
that other-crime evidence be established clearly and
convincingly.
Defendant maintains that the Appellate Division properly
determined that the other-crime evidence offered by the State
constituted propensity evidence expressly barred by N.J.R.E.
404(b). In service of that argument, defendant encourages the
Court to take an exacting approach to the relevance and
materiality considerations of Cofield’s first prong, and he
contends that the trial court erred in finding that the proposed
testimony was admissible to prove motive, intent, plan, or
absence of mistake. Defendant maintains that the motive and
intent commensurate with the commission of sexual assault are

10
obvious, and that the jury does not need the benefit of the
contested evidence to determine the motivation and intent behind
the alleged crimes. Defendant also argues that, because he
flatly denied assaulting E.S. and did not offer mistake as a
defense, his state of mind is not a contested issue. Defendant
also argues that two similar instances of alleged conduct,
separated by six years and over one thousand miles, are
insufficient to serve as evidence of a plan for the purposes of
N.J.R.E. 404(b). Defendant urges affirmance of the Appellate
Division’s holding that acquitted-act evidence should never be
admissible.
B.
The Attorney General, as amicus curiae, focuses on two
portions of the Appellate Division opinion: exclusion of
acquitted-act evidence when offered to show that the prior
offense actually occurred; and, when other-crime evidence is
admitted, the need for a jury instruction that the jury must be
satisfied beyond a reasonable doubt that the other crime
actually occurred. The Attorney General argues that the
Appellate Division’s decision is “destructive and unsound,”
running afoul of well-established precedent regarding the
admissibility of evidence under N.J.R.E. 404(b).
The Attorney General contends that the appellate panel’s
ruling deprives the jury of its traditional truth-seeking

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function. The Attorney General also argues that the panel’s
decision to impose new jury instructions when other-crime
evidence will play a pivotal role in the adjudication of guilt
represents “an improper advisory opinion” because the panel was
only asked to consider whether the 404(b) evidence at issue was
admissible. The Attorney General argues that this holding is
harmful because it will force trial judges to make the
subjective determination of which evidence is “pivotal,” induce
the State to introduce voluminous proof of other-crime evidence,
and create fertile ground for appeals and reversals.
The Office of the Public Defender, as amicus curiae,
contends that the proposed testimony fails to satisfy the
Cofield factors and argues that acquitted-act evidence should
never be admitted in a later prosecution if it is being offered
to show that the prior offense actually occurred. Reviewing the
approaches of other states, the Public Defender identifies
“three schools of thought” about the admissibility of acquitted
act evidence: (1) nine states completely bar the admission of
acquitted-act evidence; (2) twenty-one states follow the federal
rule set forth in Dowling v. United States, 493 U.S. 342, 349
50, 110 S. Ct. 668, 672, 107 L. Ed. 2d 708, 718-19 (1990), which
held that acquitted-act evidence may be admissible due to the
lower standard of proof required under Fed. R. Evid. 404(b); and
(3) ten states follow a fact-sensitive approach which allows the

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admission of acquitted-act evidence in some instances, but bars
the admission of evidence that was “conclusively rejected by a
jury in the previous trial.” The Public Defender urges the
Court to adopt the first approach, because a more fact-sensitive
approach would be “hyper-technical” and “unworkable,” and would
fail to recognize the force of an acquittal.
IV.
The admission or exclusion of evidence at trial rests in
the sound discretion of the trial court. State v. Gillispie,
208 N.J. 59, 84 (2011). “That discretion is not unbounded.
Rather, it is guided by legal principles governing the
admissibility of evidence which have been crafted to assure that
jurors receive relevant and reliable evidence to permit them to
perform their fact-finding function and that all parties receive
a fair trial.” State v. Willis, ___ N.J. ___, ___ (2016) (slip
op. at 15-16).
This appeal focuses on the admission of other-crime
evidence -- specifically, the testimony of a female spa customer
who alleged that she had been sexually assaulted by defendant, a
crime for which defendant had been tried and ultimately
acquitted. N.J.R.E. 404(b) governs the admissibility of such
evidence, and provides:
[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

13
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.
“Because evidence of a defendant’s previous misconduct ‘has a
unique tendency’ to prejudice a jury, it must be admitted with
caution.” Willis, supra, ___ N.J. at ___ (slip op. at 16)
(quoting State v. Reddish, 181 N.J. 553, 608 (2004)). “Prior
conduct evidence has the effect of suggesting to a jury that a
defendant has a propensity to commit crimes, and, therefore,
that it is ‘more probable that he committed the crime for which
he is on trial.’” Id. at ___ (slip op. at 17) (quoting State v.
Weeks, 107 N.J. 396, 406 (1987)).
In Cofield, supra, this Court established a four-prong test
designed “to avoid the over-use of extrinsic evidence of other
crimes or wrongs” pursuant to a 404(b) exception. 127 N.J. at
338. The Cofield test requires that:
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.
[Ibid. (citation omitted).]

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“[T]he party seeking to admit other-crimes evidence bears
the burden of establishing that the probative value of the
evidence is not outweighed by its apparent prejudice.” Reddish,
supra, 181 N.J. at 608-09. Ultimately, if the party seeking to
admit the evidence “demonstrate[s] the necessity of the other
crime evidence to prove a genuine fact in issue and the court
has carefully balanced the probative value of the evidence
against the possible undue prejudice it may create, the court
must instruct the jury on the limited use of the evidence.”
Cofield, supra, 127 N.J. at 340-41 (citation omitted).
As we recently held in Willis, supra, other-crime evidence
may be admissible “in sexual assault cases in which the victim’s
consent is a genuine and material issue[,]” ___ N.J. at ___
(slip op. at 18), but such evidence should be admitted with
“restraint[,]” id. at ___ (slip op. at 25). In many cases, “the
unrestrained use of evidence of another marginally relevant and
arguably remote-in-time sexual assault [will have] so clear a
capacity to distract the jury from the evidence in support of
the State’s case-in-chief that it should [be] excluded.” Ibid.
Importantly, “other-crime evidence must be relevant to a
genuinely contested fact and . . . the probative value of the
proffered evidence must be critically evaluated in order to
properly balance the relevance of the evidence and the prejudice

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its admission will cause[.]” Id. at ___ (slip op. at 19)
(citing State v. Stevens, 115 N.J. 289, 302 (1989)).
In a case in which a defendant contends the alleged assault
did not occur, intent and absence of mistake are not at issue.
In the absence of a genuinely contested fact, other-crime
evidence is irrelevant and the first Cofield prong cannot be
satisfied.1
When other-crime evidence, including acquitted-act
evidence, is admitted at trial, and before the trial court
instructs the jury on the limited and specific purpose for which
the evidence has been admitted, the court must advise the jury
as follows:
Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied that the defendant committed the other [crime, wrong, or act]. If you are not so satisfied, you may not consider it for any purpose.
1 We can envision certain circumstances in which motive evidence may be admissible in the face of a denial by the defendant that the charged act did not occur. A fact-sensitive evaluation of the proffered evidence would be required to determine if the defendant’s motive is a genuine issue in the case. See State v. Rose, 206 N.J. 141, 162-63 (2011) (permitting evidence of earlier attempt to kill victim as evidence of motive in defendant’s trial for purposeful murder as accomplice and felony murder of same victim).

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[Model Jury Charges (Criminal), “Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))” (June 4, 2007) (emphasis added).]
V.
A.
We affirm the Appellate Division’s determination that
A.W.’s testimony is inadmissible under N.J.R.E. 404(b)
substantially for the reasons asserted in its opinion. J.M.,
supra, 438 N.J. Super. at 221-30. We add the following
comments.
The first Cofield factor requires that “the evidence of the
prior bad act, crime or wrong . . . be relevant to a material
issue that is genuinely disputed.” State v. Covell, 157 N.J.
554, 564-65 (1999). Under N.J.R.E. 401, evidence is relevant if
it “[has] a tendency in reason to prove or disprove any fact of
consequence to the determination of the action.” “[T]he primary
focus in determining the relevance of evidence is whether there
is a ‘logical connection between the proffered evidence and a
fact in issue.’” Willis, supra, ___ N.J. at ___ (slip op. at
18) (quoting Covell, supra, 157 N.J. at 565). “Moreover, the
material fact sought to be proved must be one that is actually
in dispute[.]” Ibid. (citing Cofield, supra, 127 N.J. at 338).
Here, the trial court erroneously found that A.W.’s
testimony satisfied the first Cofield factor as evidence of
motive, intent, absence of mistake, or plan. Defendant does not

17
argue that the alleged sexual assault of E.S. was consensual or
accidental; rather, he maintains that the sexual assault never
occurred. As such, A.W.’s testimony is inadmissible to
establish motive, intent, or absence of mistake because
defendant’s state of mind is not a “genuinely contested” issue
in this case. Id. at ___ (slip op. at 19) (citing Stevens,
supra, 115 N.J. at 302). The testimony is also inadmissible for
proof of plan, because it is insufficient to “establish the
existence of a larger continuing plan of which the crime on
trial is a part[.]” Stevens, supra, 115 N.J. at 306 (quoting
State v. Louf, 64 N.J. 172, 178 (1973)). A “strong factual
similarity” between the two sexual assaults is not enough to
reveal a plan. Id. at 305. Because the proposed testimony does
not serve any of the permitted purposes of other-crime evidence
set forth in N.J.R.E. 404(b), the testimony is inadmissible
under the first Cofield requirement.
For similar reasons, the proposed testimony fails to
satisfy the fourth Cofield requirement that “[t]he probative
value of the evidence must not be outweighed by its apparent
prejudice.” Cofield, supra, 127 N.J. at 338. As we explained
in Willis, supra, N.J.R.E. 404(b) is “a rule of exclusion rather
than a rule of inclusion.” ___ N.J. at ___ (slip op. at 20)
(quoting State v. Marrero, 148 N.J. 469, 483 (1997)). Given the
“inflammatory characteristic of other-crime evidence[,]” the

18
trial court must conduct a “careful and pragmatic
evaluation . . . to determine whether the probative worth of the
[other-crime] evidence outweighs its potential for undue
prejudice.” Ibid. (quoting Stevens, supra, 115 N.J. at 303).
We agree with the Appellate Division that, “even if probative
value could be found in A.W.’s testimony, it is so greatly
outweighed by the prejudicial effect -- namely, the jury’s
inevitable assumption that defendant has a propensity to engage
in such conduct -- as to render it inadmissible.” J.M., supra,
438 N.J. Super. at 229-30.
B.
Having determined that evidence of the Florida sexual
assault was not admissible under the Cofield factors, it was not
necessary to discuss, much less impose, a bright-line rule
prohibiting the admission of acquitted-act evidence in other
cases. A bright-line bar on acquitted-act evidence is
inappropriate, and we decline to adopt it here. As illustrated
by the Appellate Division’s decisions in Schlue, supra, 129 N.J.
Super. 351, and Yormark, supra, 117 N.J. Super. 315, there are
certain limited circumstances in which such evidence should be
admitted.
In Schlue, supra, the defendant was charged with
obstruction of justice for attempting to induce a member of an
alleged bribery scheme to conceal the scheme from police. 129

19
N.J. Super. at 352-53. In an earlier proceeding, the defendant
had been acquitted of the underlying bribery charge, but the
State sought to admit evidence of the alleged bribery in order
to prove the defendant’s motive for obstruction. Id. at 353.
The Appellate Division held that the evidence of the alleged
bribery was admissible, even though the defendant had been
acquitted of that crime, because “none of the issues of ultimate
fact in the prosecution for obstruction of justice were involved
or decided in the trial on the bribery charge[.]” Id. at 355.
Therefore, the acquitted-act evidence could be admitted as
evidence of the defendant’s motive for obstruction without
raising collateral estoppel or double jeopardy concerns. Ibid.
In Yormark, supra, four defendants were convicted of a
conspiracy to obtain money under false pretenses. 117 N.J.
Super. at 323. At trial, the State produced evidence of a
previous conspiracy with many similar characteristics, even
though two of the defendants had been acquitted of the prior
conspiracy. Id. at 334-35. The Appellate Division held that
the evidence of the prior conspiracy was admissible,
notwithstanding the acquittals, as evidence of the defendants’
plan, motive, prior course of dealing with each other, and
knowledge relevant to committing the conspiracy with which they
were presently charged. Id. at 336-37. The panel also found
that the acquitted-act evidence did not implicate double

20
jeopardy or collateral estoppel because the underlying
conspiracies arose from separate operative facts. Id. at 333
34.
As Schlue and Yormark reflect, there are limited
circumstances in which acquitted-act evidence is both highly
probative and not unduly prejudicial to a defendant, and
therefore may be admissible. As with all other-crime evidence,
acquitted-act evidence may only be admitted after a vigorous
Cofield analysis. With respect to the third prong of the
Cofield test -- the “clear and convincing evidence” requirement
-- the fact that a defendant was acquitted of the prior crime
will often weigh heavily against a finding that the evidence of
that crime is “clear and convincing.” See Cofield, supra, 127
N.J. at 338. On the other hand, an acquittal will not always
vitiate the “clear and convincing evidence” requirement,
especially when the State is not seeking to prove that a
defendant actually committed the prior crime. For example, when
the State seeks to prove that a prior criminal trial of a
defendant provides a motive for subsequent criminal conduct,
whether the defendant committed the prior act has no bearing on
his motive. The mere fact that he was subject to a criminal
charge suffices.2
2 In the limited circumstances in which acquitted-act evidence is admissible, a defendant should have the option to request

21
C.
In the third section of its opinion, the appellate panel
directed that, in the event other-crime evidence is admitted,
the defendant had been acquitted of that charge, and the
acquitted-act evidence is pivotal to the State’s case, the jury
should be instructed that it must be satisfied beyond a
reasonable doubt that the defendant actually committed the prior
offense. We do not adopt this portion of the opinion. Having
determined that the six-year-old other-crime evidence should not
have been admitted, the appellate panel addressed an issue that
had no bearing on the disposition of the appeal. It effectively
rendered an advisory opinion. See G.H. v. Twp. of Galloway, 199
N.J. 135, 136 (2009) (declining to reach question of limits of
statutory preemption of municipal action in context of challenge
to viability of existing ordinances).
Furthermore, as illustrated in Willis, supra, were we to
require a jury to determine whether the State established beyond
a reasonable doubt that a defendant committed the other alleged
crime, we would effectively require a trial-within-a-trial, with
its attendant capacity to distract the jury from the case-in
chief and to inject the prohibited inference of the defendant’s
propensity to commit similar offenses. ___ N.J. at ___ (slip
that the trial court inform the jury that a jury had acquitted the defendant of that charge.

22
op. at 23-24). Such an instruction also minimizes the role of
the trial judge, who is charged in the first instance with
determining whether such evidence should be admitted. See
Gillispie, supra, 208 N.J. at 84 (holding that admission or
exclusion of other-crime evidence “is left to the sound
discretion of the trial court”).3
We emphasize once again that N.J.R.E. 404(b) is a rule of
exclusion and that the trial judge bears the burden of
scrutinizing the proffered evidence to determine if it satisfies
the Cofield rule. In the end, assuming the trial court finds
that the proffered evidence is relevant, similar in kind, not
remote in time, and does not cause undue prejudice, the other
crime evidence cannot be admitted unless the judge finds that
the State has presented clear and convincing evidence that the
defendant committed the offense. State v. Koskovich, 168 N.J.
448, 483-85 (2001).

Outcome: For the foregoing reasons, the judgment of the Appellate
Division is affirmed as modified.

Plaintiff's Experts:

Defendant's Experts:

Comments: