EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, November 23, 2012

Reelin' In The Years: NJ Court Finds Decade-Old Convictions Admissible In "Black Friday" Case

Pursuant to New Jersey Rule of Evidence 609,

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence. 

But how remote is too remote? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Vasquez, 2012 WL 1468614 (N.J.Super.A.D. 2012).

According to the court in Vasquez,
The day after Thanksgiving is known in the retail trade as "Black Friday." It marks the beginning of the Christmas/holiday shopping season and many stores open early and close late on that date while offering enticing promotional sales. In 2001, Black Friday fell on November 23, and Value CIty department store in Vineland was open until midnight.
Shortly after closing, store manager William Waltman was counting the day's receipts from his store's busiest shopping day of the year. He was in a locked room in a secured area on the second floor called the "cash room" located adjacent to his office. Around 12:20 a.m., Luis Vasquez, defendant's brother and one of two security guards on duty, rang a bell seeking admittance to the secured second floor area. It was unusual for Luis to come to the second floor area as he was assigned to loss prevention and normally stationed near the store entrance. Nevertheless, when Waltman recognized Luis in a video security monitor, he pressed a buzzer allowing him to enter the area.
Waltman remained in the locked cash room for fifteen more minutes. By 12:35 a.m., he had finished counting the receipts and locked them in the store's vault. He set the alarm and as he was leaving the cash room, he noticed a man with a gun wearing a black ski mask and white gloves. The gunman ordered Waltman down on the floor, put the gun to his head and asked him, "Do you value your life?" The gunman told Waltman to open the safe but Waltman lied, saying the safe was on a time lock and could not be opened until morning. Waltman offered his own money and took out his wallet and gave the gunman all the cash he had, $260 to $300. When Waltman got up from the floor he noticed Luis in the room. The gunman then asked Luis to lead him out of the store.
Before opening the emergency exit door for defendant, Luis used his key to disable the fire alarm. A member of the cleaning crew saw Luis following the gunman toward the exit and, after unlocking the door, Luis told the gunman, "go, go, go."

Upon the belief that the defendant, Frank Vasquez, was the gunman, the State charged him with robbery and related charges. After he was convicted, Vasquez appealed, claiming, inter alia, that the trial court erred in allowing him to be impeached through evidence of two prior convictions in 1991 for third degree attempted theft and third degree possession with intent to distribute

Vasquez was later convicted of third degree possession with intent to distribute in a school zone in 2003, and his "Black Friday" trial was held in 2003, meaning that both the date of conviction and date of release for the 1991 convictions was likely 10+ years before the "Black Friday" trial.

A decade is a pretty long time, but the court found that

Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. 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. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible

Therefore, according to the court,

Considering that defendant was incarcerated for a substantial period of time between the 1993 convictions and the instant offense, we find no abuse of discretion in the trial court's ruling.



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