State v. Angelina Nicole Carlucci (069183)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Angelina Nicole Carlucci (A-85-11) (069183)

Argued January 3, 2013 -- Decided March 13, 2014

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

The issue in this appeal is whether inculpatory statements by defendant of other crimes, wrongs or acts
were admissible pursuant to N.J.R.E. 404(b).

On October 7, 2008, defendant Angelina Nicole Carlucci was employed as an assistant manager at a
restaurant in Greenwich. According to another restaurant employee, Katie Lynn Briggs, around 2:30 p.m. a clear
packet fell out of defendant’s shirt. Patricia Barlow, another employee, kicked the packet under the counter,
retrieved it, and gave it to Briggs. Briggs took the packet to the bathroom to examine it. Finding that it contained
“chunks of something,” Briggs telephoned the general manager. The police were contacted. When Greenwich
Township Detective Richard Hummer and Patrolman Steven Buss arrived, Briggs met them in the back parking lot
and handed the packet to them. The officers conducted a field test, which revealed that the packet contained
cocaine. Briggs told the police officers that defendant had dropped the packet. Patrolman Buss then asked
defendant to come into the manager’s office located at the back of the restaurant and proceeded to question her.

Defendant was arrested and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Prior
to trial, defendant challenged the admissibility of her statements to Patrolman Buss. At a pretrial Jackson-Denno
hearing on the admissibility of defendant’s statements, Patrolman Buss testified that he showed the clear packet to
defendant and asked “what is this,” to which she replied that she “did not know.” Patrolman Buss then read
defendant her Miranda rights and defendant, who was not handcuffed or otherwise restrained, indicated that she was
willing to speak with him. Patrolman Buss again asked defendant if she knew what the substance was and she
replied that it was “crack,” and that she knew this because she “had been in trouble for it in the past.” In addition,
defendant stated that “the night prior she had drank alcohol and taken a Vicodin,” and that the Vicodin was not
legally prescribed.

The judge who conducted the Jackson-Denno hearing issued a written decision determining that
defendant’s statements to Patrolman Buss would be admissible at trial. The judge found that Patrolman Buss’ initial
inquiries to defendant regarding the clear packet did not require prior Miranda warnings because the inquiry was
merely investigatory at that stage. The judge further found that Patrolman Buss read defendant her Miranda rights
as soon as he “recognized that a sustained one-on-one questioning of [d]efendant in a back office was sufficiently
coercive such that her continued detention rose to the level of a de facto arrest.” The judge also determined that
defendant’s post-Miranda statements were admissible: “There is nothing in the record to indicate that [d]efendant’s
waiver was not knowing, intelligent, and voluntary.”

A different judge presided at defendant’s trial. Before Patrolman Buss testified, defense counsel moved to
suppress defendant’s statements regarding her prior crack use. The trial judge denied the motion on the basis that
the objection was precluded by “the law of the case” doctrine based on the Jackson-Denno ruling and stated that an
instruction limiting the use of this evidence would be given. At the trial, Patrolman Buss’ testimony differed from
his pretrial Jackson-Denno hearing testimony. At trial, he testified that defendant admitted that the substance in the
clear packet that fell from her shirt was crack, before he read her the Miranda warnings. Patrolman Buss’ testimony
was otherwise similar to that provided at the Jackson-Denno hearing. Immediately after Patrolman Buss’ testimony,
and again prior to jury deliberations, the trial judge instructed the jury that defendant’s statements could only be
used as evidence of consciousness of guilt and not as proof that she had a propensity to commit crimes.

The jury found defendant guilty of third-degree possession of cocaine. The trial judge denied defendant’s
motion for a new trial and imposed a one-year probationary term, subject to service of 270 days in the Warren

1
County Jail as a special condition of probation, pursuant to N.J.S.A. 2C:43-2b(2).
Defendant appealed. The Appellate Division affirmed, agreeing with the Jackson-Denno judge’s
determination that Patrolman Buss’ initial questioning was investigatory. The appellate panel found that defendant
was not in custody, that protections guaranteed by Miranda were not violated, and that defendant’s post-Miranda
statements were made knowingly, voluntarily, and intelligently. The panel rejected defendant’s argument that her
statements regarding her prior use of crack and Vicodin should have been excluded pursuant to N.J.R.E. 403 and
404(b). The panel concluded that the trial judge did not abuse his discretion by admitting the statements to show
consciousness of guilt, along with a limiting instruction to the jury on two separate occasions.

The Supreme Court granted defendant’s petition for certification. 209 N.J. 232 (2012).

HELD: The admission of evidence of defendant’s other crimes, wrongs or acts was contrary to N.J.R.E. 404(b),
and such admission constituted harmful error.

1. The admissibility of evidence of other crimes, wrongs or acts pursuant to N.J.R.E. 404(b) is subject to the four-
prong test established in State v. Cofield, 127 N.J. 328, 338 (1992). The evidence must be “relevant to a material
issue” that is genuinely disputed, “similar in kind and reasonably close in time to the offense charged,” “clear and
convincing,” and “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” In this
matter, only the first, third, and fourth Cofield prongs are applicable to the analysis. (pp. 13-15)

2. The first prong of Cofield requires that the evidence offered be “relevant to a material issue” that is genuinely
disputed. Here the field test already had determined that the substance was cocaine. The identity of the substance as
cocaine was not in dispute. Defendant’s knowledge that the contents of the baggie was crack cocaine was not an
issue necessary for the jury to resolve. Thus, this first response by defendant does not satisfy prong one of the
Cofield test. Defendant’s second response to the same question, that it appeared to be cocaine, was not admissible
for any proper purpose under N.J.R.E. 404(b). It did not address a material issue in dispute and, further, defendant’s
knowledge that the substance appeared to be cocaine did not provide evidence of consciousness of guilt of present
possession. Moreover, defendant’s initial denial of knowledge of the baggie’s contents was not a crime, and her
recognition of the substance in the baggie as cocaine did not evidence her commission of a crime. At a minimum,
this evidence was suggestive of defendant’s propensity to use or possess drugs. That use was impermissible
pursuant to N.J.R.E. 404(b). Similarly, defendant’s admissions, in response to the patrolman’s further questioning
of prior use of crack cocaine, alcohol, and Vicodin are not relevant to the instant possession charge. (pp. 15-17)

3. The third prong of the Cofield test requires that “[t]he evidence of the other crime must be clear and convincing.”
Here, there is no evidence, other than Patrolman Buss’ testimony about defendant’s statement, that she last used
crack cocaine two days before her arrest. This prong is not met here. Finally, the important fourth prong requires
that “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” Defendant’s prior
admissions of drug use are not relevant to any material issue in dispute. Even if they were, the minimal relevance
would be substantially outweighed by the unfair prejudice. The statements may lead jurors to the conclusion that
defendant must have possessed crack cocaine on this occasion because she has a propensity for having and using
illegal substances generally and cocaine specifically. The evidentiary use of defendant’s statements transgressed the
prohibition against the use of other crime, wrongs, and bad acts evidence in N.J.R.E. 404(b). (pp. 17-18)

4. Defendant also raises several arguments about the voluntariness of incriminatory statements introduced into
evidence at trial. In light of its holding that impermissible N.J.R.E. 404(b) evidence tainted this trial, the Court
declines to address defendant’s factual and legal arguments about 1) the timing of her Miranda warnings; and 2)
whether she was subjected to custodial interrogation throughout her questioning by Patrolman Buss. However,
when this matter is retried and if the prosecutor seeks to elicit defendant’s response to Patrolman Buss’ simple
“What is this?” question, defendant may renew her request for a new Jackson-Denno hearing. Moreover, the record
before the Court does not permit a proper review of the custodial nature of the place and manner of interrogation. In
conclusion, the Court holds that the admission of evidence of defendant’s other crimes, wrongs or acts was contrary
to N.J.R.E. 404(b), and that such admission constituted harmful error. (pp. 19-22)

The judgment of the Appellate Division is REVERSED, defendant’s conviction is VACATED, and the
matter is REMANDED to the Law Division for new trial proceedings consistent with the Court’s opinion.

2
 CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.

3
 SUPREME COURT OF NEW JERSEY
A-85 September Term 2011
069183

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELINA NICOLE CARLUCCI,

Defendant-Appellant.

Argued January 3, 2013 – Decided March 13, 2014

On certification to the Superior Court,
Appellate Division.

Susan Brody, Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney).

Dit Mosco, Assistant Prosecutor, argued the
cause for respondent (Richard T. Burke,
Warren County Prosecutor, attorney).

JUDGE RODRÍGUEZ (temporarily assigned) delivered the

opinion of the Court.

An inculpatory statement made by an accused prior to

trial, and later introduced as evidence, may be very

persuasive to a jury precisely because it comes from the

mouth of the accused. In this appeal, defendant seeks

reversal of a conviction for third-degree possession of

cocaine, N.J.S.A. 2C:35-10a(1), by challenging several such

statements on various grounds. We reverse defendant’s

1
conviction on the sole basis that statements that should

have been excluded pursuant to N.J.R.E. 404(b) were

admitted in her trial.

I.

A.

On October 7, 2008, defendant Angelina Nicole Carlucci

was employed as an assistant manager at a restaurant in

Greenwich. According to another restaurant employee, Katie

Lynn Briggs, around 2:30 p.m. a clear packet fell out of

defendant’s shirt. Patricia Barlow, another employee,

kicked the packet under a counter, retrieved it, and gave

it to Briggs. Briggs took the packet to the bathroom to

examine it. Finding that it contained “chunks of

something,” Briggs telephoned the general manager (who

happened to be her sister, Erin) and hid the package in her

sweater. The police were contacted. When Greenwich

Township Detective Richard Hummer and Patrolman Steven Buss

arrived, Briggs met them in the back parking lot and handed

the packet to them. The officers conducted a field test,

which revealed that the packet contained cocaine. Briggs

told the police officers that defendant had dropped the

packet. Patrolman Buss then asked defendant to come into

the manager’s office located at the back of the restaurant.

2
 Patrolman Buss, who was the sole witness at an August

2009 pretrial Jackson-Denno1 hearing on the admissibility of

defendant’s statements made to him during his questioning

of her, testified as follows:

[Assistant Prosecutor]: Okay. And at
that time did you -- when you met with her,
did you say anything to her when you first
met with her?

[Patrolman Buss]: Yes, I did.

Q. What did you say?

A. I asked her what -- I showed her the --
the substance in hand. I said what is this?

Q. Okay. What did you believe it to
be incidentally?

A. We believed it to be crack cocaine.

Q. And when you asked her that
question, what did she say?

A. She said that she did not know.

Q. Okay. Did you say anything about
whether it was hers or not?

A. No. Not at the time.

Q. At some point in time after asking
that question did you provide her with her
Miranda[2] rights?

A. Yes, I did.

1
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d
908 (1964).
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3
 Q. Can you tell the Court or describe
for the Court how -- how you went about
doing that at that time?

A. After I asked her that question, I took
the Miranda card from my pocket, I read off
each warning, she stated she understood, and
stated she would speak with us.

Q. Do you have a -- an identical copy
of the Miranda card you used that day with
you today?

A. Yes, I do.

. . . .

Q. And did you ask her if she was
willing to speak with you?

A. Yes.

Q. And what did she say?

A. She stated that she was willing.

Q. Can you describe any further --
well, before I go on there, who also was in
the room at that time?

A. As I was reading it it was myself and
Ms. Carlucci, and at the end of it,
Detective Hummel was walking into the room.

Q. Now had Ms. Carlucci been
handcuffed or restrained in any way at that
point?

A. No.

Q. Okay.

. . . .

Q. While -- while they’re at Perkin’s,
officer can you describe any further

4
conversation that you had with Ms. Carlucci
about the substance of anything else?

A. I asked Ms. Carlucci what was going on.
She stated that this substance that I had
showed to her previously was found by
someone that they were trying to get her in
trouble. I then asked her what the
substance was again, and she replied that it
was crack.

Q. Did she indicate to you how --
make any statement to you regarding how she
was able to identify the substance as crack?

A. Yes, she did.

Q. What did she say?

A. She stated that she had been in trouble
for it in the past so she knew what it
looked like.

Q. Did you ask her anything regarding
when the last time she was -- that she used
crack cocaine?

A. Yes, I did.

Q. And what was her response?

A. She said it was about two days ago.

Q. Did she offer any other
information regarding any other substances
she had used prior to you arriving at the
Perkin’s?

A. Yes, she did.

Q. And what did she say?

A. She said that the night prior she had
drank alcohol and taken a Vicodin.

5
 Q. Okay. Did she indicate to you
whether or not the Vicodin was legally
prescribed or not?

A. She said that it was not.

Q. At some point in time did you
place her under arrest?

A. Yes.

Q. Did she make any other statements
to you at that time prior to placing her
under arrest?

A. No.

B.

Defendant was arrested and charged with third-degree

possession of cocaine, N.J.S.A. 2C:35-10a(1). Prior to trial,

defendant challenged the admissibility of her statements to

Patrolman Buss. The judge conducted a Jackson-Denno hearing and

issued a written decision determining that defendant’s

statements to Patrolman Buss would be admissible at trial. The

judge found that Patrolman Buss’ initial inquiries to defendant

regarding the clear packet that had fallen out of defendant’s

shirt did not require prior Miranda warnings because the inquiry

was merely investigatory at that stage. The judge commented

that for purposes of the one initial question posed to defendant

she was not in custody, noting that defendant held a managerial

position with the restaurant and “presumably was familiar with

the back office.” That impression changed when the patrolman

6
testified at trial that he stood in front of the door to prevent

defendant from attempting to leave. In a written opinion, the

judge went on to find as follows:

Initially, it seems that Patrolman Buss’
questioning was akin to an investigative
stop that was ‘not so intrusive as to become
a de facto arrest.’ Therefore, this initial
question to her did not require a Miranda
warning. However, once Patrolman Buss got
past this initial inquiry, he recognized
that a sustained one-on-one questioning of
[d]efendant in a back office was
sufficiently coercive such that her
continued detention rose to the level of a
de facto arrest. As such, Patrolman Buss
read [d]efendant her Miranda rights and had
her sign a card indicating she understood
her rights before he continued his
questioning. There is nothing in the record
to indicate that [d]efendant’s waiver was
not knowing, intelligent, and voluntary.
Therefore, her [post-Miranda] statements are
admissible.

A different judge presided at defendant’s trial. Briggs,

Barlow, Detective Hummer, and Patrolman Buss testified for the

State. Before Patrolman Buss testified, defense counsel moved

to suppress defendant’s statements regarding her prior crack

use. The trial judge denied the motion on the basis that the

objection was precluded by “the law of the case” doctrine based

on the Jackson-Denno ruling and stated that an instruction

limiting the use of this evidence would be given.

At the trial, Patrolman Buss’ January 2010 testimony

differed from his pretrial Jackson-Denno hearing testimony. The

7
sequence of events was altered in respect to when Miranda

warnings were given. His testimony was as follows:

Q. And what, if anything, did you say
to her at that time?

A. Um, I held up the suspected crack
cocaine and asked what is this.

Q. Did she respond?

A. Yes. She said that she didn’t know.

Q. Did you ask her again what it was?

A. Yes.

Q. And what did she say?

A. The second time I asked her she said
that it was crack.

Q. And after she told you that it was
crack, what if anything did you do?

A. Um, at that time I Mirandized [sic]
her. I read her her Miranda warnings.

Thus, according to Patrolman Buss’ trial testimony, defendant

admitted that the substance in the clear packet that fell from

her shirt was crack, before he read her the Miranda warnings.

Patrolman Buss also testified that defendant told him that

“the substance [he] had show[n] to her previously was found by

someone and that they were trying to get her in trouble.”

According to him, she explained that she was able to identify

the substance as crack because she “had been in trouble for

[crack cocaine] in the past so she knew what it looked like.”

8
Patrolman Buss also asked her when she last used crack and she

stated “about two days ago,” adding that she also had used

Vicodin, which was not prescribed to her, and alcohol the day

before. There was no objection to this testimony.

Immediately after Patrolman Buss’ testimony, the trial

judge instructed the jury that the “proof of other crimes,

wrongs, or acts” just offered by the State could only be used as

“evidence of a consciousness of guilt on the defendant’s part

regarding the possession of CDS.” The trial judge further

instructed:

You may not draw this inference unless you
conclude that the acts alleged were an
attempt by the defendant to cover up the
crime being alleged. Whether this evidence
does, in fact, demonstrate[] the defendant’s
consciousness is for you to decide . . . .

[Y]ou may not use this evidence to decide
that defendant had a tendency to commit
crimes or that she is a bad person. That
is, you may not decide that just because
defendant has committed other wrongs or
crimes, that [she] is guilty of the present
crime. I will admit this evidence only . .
. to help you decide the specific question .
. . did she on this particular day have
possession of this CDS? Did she possess the
crack cocaine? You may not consider it for
any other purposes and may not find the
defendant guilty simply because the State
has offered evidence that she may have used
crack cocaine on other occasions.

Defendant presented no witnesses. Prior to deliberations, the

trial judge again instructed the jury that defendant’s

9
statements could only be used as evidence of consciousness of

guilt and not as proof that she had a propensity to commit

crimes.

The jury found defendant guilty of third-degree possession

of cocaine. The trial judge denied defendant’s motion for a new

trial and imposed a one-year probationary term, subject to

service of 270 days in the Warren County Jail as a special

conviction of probation, pursuant to N.J.S.A. 2C:43-2b(2). This

sentence was to run concurrent to the sentence imposed for the

violation of probation on a 2006 conviction.

Defendant appealed. The Appellate Division affirmed,

agreeing with the Jackson-Denno judge’s determination that

Patrolman Buss’ initial questioning was investigatory, “an

attempt to dispel or confirm suspicions that justify the

detention.” Patrolman Buss’ initial question was not accusatory

in nature, and “did not call for an admission of guilt and did

not elicit any incriminating information.” Furthermore, though

defendant was “restrained” in the manager’s office, she was not

in custody. Thus, protections guaranteed by Miranda were not

violated.

The panel also agreed with the finding that defendant’s

post-Miranda statements were made knowingly, voluntarily, and

intelligently. Moreover, the panel rejected defendant’s

argument that her statements regarding her prior use of crack

10
and Vicodin should have been excluded pursuant to N.J.R.E. 403

and 404(b). The panel concluded that the trial judge did not

abuse his discretion by admitting the statements to show

consciousness of guilt, along with a limiting instruction to the

jury on two separate occasions.

This Court granted defendant’s petition for certification.

State v. Carlucci, 209 N.J. 232 (2012).

II.

Defendant contends that her conviction must be reversed

because inadmissible statements were improperly introduced

against her at trial. Specifically, she argues that her

statement identifying the contents of the baggie as crack was

inadmissible because it was elicited by questioning in a

custodial setting without the benefit of Miranda warnings.

Defendant asserts she was not free to leave because Patrolman

Buss isolated her in the office, blocked the door with his body,

and conveyed his suspicions that she was the owner of the CDS by

asking her to identify it. She argues that her post-Miranda

statements also were inadmissible because Patrolman Buss engaged

in a “question-first, warn-later” procedure.

Further, she argues that her statements identifying the

baggie’s contents as crack and referring to her prior drug use

were inadmissible because, pursuant to N.J.R.E. 404(b), they

constituted evidence of other crimes, wrongs, or acts and were

11
introduced for no valid evidentiary purpose. Defendant argues

that her “knowledge of the baggie’s contents was not an issue in

genuine dispute” and that it was improper to admit her initial

denial of knowledge of the identity of the baggie’s contents as

evidence of consciousness of guilt. She also argues that her

reference to prior illegal drug use was sheer improper

propensity evidence that served no legitimate evidentiary

purpose pursuant to N.J.R.E. 404(b). Further, she argues that

the trial judge’s limiting instruction exacerbated the harm

because it “direct[ed] the jury to consider the evidence for the

very purpose prohibited by N.J.R.E. 404(b),” namely, her guilt

of the present possessory offense.

Finally, defendant argues that her statements should be

suppressed because they were not recorded pursuant to Rule 3:17.

The State contends that defendant’s statements were

properly admitted because (1) she was neither in custody nor

interrogated prior to being read Miranda warnings; (2) Patrolman

Buss did not utilize a “question-first, warn-later” technique;

and (3) defendant’s statements were relevant to show

consciousness of guilt.

The State argues that defendant was not in custody when

Patrolman Buss questioned her, because a single officer

interviewed her in her manager’s office with an unlocked door.

Defendant also was not restrained, yelled at, or threatened in

12
any way. The State asserts that Patrolman Buss asked defendant

only one question before giving her Miranda warnings and that

question was investigatory, not accusatory. Thus, defendant was

not subjected to custodial interrogation.

The State also argues that defendant’s admission that she

knew the substance was crack was not incriminating. Defendant

was not asked whether the cocaine belonged to her before hearing

the Miranda warnings, and after she was warned, she denied

ownership. Thus, Patrolman Buss did not use a “question-first,

warn-later” technique.

The State concedes that, although a N.J.R.E. 104(a) hearing

was not held, the Jackson-Denno hearing was an equivalent

proceeding. The State argues defendant’s statements regarding

her prior drug use were properly admitted to show that defendant

“knew, because of her prior usage, the substance was crack and

she knew it was illegal . . . and therefore, she did not possess

it by accident.” The State argues that the information revealed

her consciousness of guilt because she initially denied knowing

what the substance was, but then later admitted she knew it was

crack cocaine based on her prior usage.

III.

A.

We first address defendant’s arguments that her statements

to Patrolman Buss about her prior unrelated use of crack cocaine

13
and other substances, as well as her identification of the

baggie’s contents as appearing to be cocaine were inadmissible

pursuant to N.J.R.E. 404(b) and should have been excluded from

trial.

N.J.R.E. 404(b) 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 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.

The Court in State v. P.S., 202 N.J. 232, 255 (2010), noted

that “[b]ecause N.J.R.E. 404(b) is a rule of exclusion rather

than a rule of inclusion,” the proponent of evidence of other

crimes, wrongs or acts must satisfy a four-prong test. In State

v. Cofield, 127 N.J. 328, 338 (1992), this Court set forth a

four-prong test governing the admissibility of evidence pursuant

to N.J.R.E. 404(b). 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.

14
 [Ibid. (citing Abraham P. Ordover, Balancing
The Presumptions of Guilt and Innocence:
Rules 404(b), 608(b), and 609(a), 38 Emory
L.J. 135, 160 (1989) (footnote omitted)).]

We have recognized that the second prong does not have

universal applicability in a N.J.R.E. 404(b) analysis. See

State v. Williams, 190 N.J. 114, 131 (2007). In this matter,

the first, third, and fourth Cofield prongs are applicable to

the analysis. We turn therefore to the application of that

test.

B.

The first prong of Cofield requires that the evidence

offered be “relevant to a material issue” that is genuinely

disputed. Cofield, supra, 127 N.J. at 338. The State argues

that defendant’s remarks that she has been in trouble for using

crack cocaine in the past, and that she used cocaine two days

before, are relevant to her consciousness of guilt because she

initially denied knowing what the substance in the baggie held

before her was. Her initial denial, the State argues, can be

construed as an attempt to cover up the current possessory

crime. However, this argument fails for the evidence is simply

not relevant to a genuine issue in dispute.

Here the field test already had determined that the

substance was cocaine. The identity of the substance as cocaine

was not in dispute. Defendant’s initial response to the

15
question “what is this” was “I don’t know.” Defendant’s

knowledge that the contents of the baggie dangled in front of

her was crack cocaine was not an issue necessary for the jury to

resolve. Thus, this first response by defendant does not

satisfy prong one of the Cofield test.

Undoubtedly, the officer asked defendant the question “what

is this” twice, hopeful that she would acknowledge the baggie as

hers, but she simply responded to his second inquiry that it

appeared to be cocaine. That second response was not admissible

for any proper purpose under N.J.R.E. 404(b). It did not

address a material issue in dispute and, further, her knowledge

that the substance appeared to be cocaine did not provide

evidence of consciousness of guilt of present possession. To

the extent that the trial court admitted her responses as

evidence of consciousness of guilt, we disagree. Clearly, a

suspect’s words or actions “subsequent to the commission of the

crime which indicate consciousness of guilt, or are inconsistent

with innocence or tend to establish intent are relevant and

admissible.” State v. Rechtschaffer, 70 N.J. 395, 413 (1976).

However, her initial denial of knowledge of the baggie’s

contents was not a crime. Furthermore, her recognition of the

substance in the baggie as cocaine, which had not yet been

attributed to her by Patrolman Buss, did not evidence her

commission of a crime. At a minimum, this evidence was

16
suggestive of defendant’s propensity to use or possess drugs.

That use was impermissible pursuant to N.J.R.E. 404(b).

Moreover, defendant’s admissions, in response to the

patrolman’s further questioning of prior use of crack cocaine,

alcohol, and Vicodin similarly are not relevant to the instant

possession charge. The State argues that defendant’s admissions

of prior use are relevant because they prove that she knew –-

because she would know as a prior user -- the substance was

crack cocaine. However, defendant did not dispute that the

substance field tested as crack cocaine. She claimed that her

statements to Patrolman Buss should have been suppressed and

that there was no proper purpose for their admission. She did

not testify in this matter or present any witnesses in defense.

The burden was on the State to prove all elements of the

possessory offense for which defendant was charged. In that

context, because the fact that the substance in the baggie was

crack cocaine was not in dispute, her statements of prior use

should not have been admitted for the proffered purpose. Nor

can they be admitted to further bootstrap an argument of

consciousness of guilt.

The third prong requires that “[t]he evidence of the other

crime must be clear and convincing.” Cofield, supra, 127 N.J.

at 338. Here, there is no evidence, other than Patrolman Buss’

17
testimony about defendant’s statement, that she last used crack

cocaine two days before her arrest. This prong is not met here.

Finally, the important fourth prong requires that “[t]he

probative value of the evidence must not be outweighed by its

apparent prejudice.” Ibid. The State has not demonstrated that

defendant’s statements were admissible for a purpose permitted

by N.J.R.E. 404(b). Defendant’s prior admissions of drug use

are not relevant to any material issue in dispute. Even if they

were, the minimal relevance would be substantially outweighed by

the unfair prejudice. The statements that defendant admitted to

prior crack cocaine use and to using crack cocaine, alcohol, and

Vicodin two days prior to the incident at the restaurant may

lead jurors to the conclusion that defendant must have possessed

crack cocaine on this occasion because she has a propensity for

having and using illegal substances generally and cocaine

specifically. That is precisely the sort of reason for which

N.J.R.E. 404(b) evidence cannot be introduced.

We conclude, therefore, that the evidentiary use of these

statements by defendant transgressed the prohibition against the

use of other crime, wrongs, and bad acts evidence in N.J.R.E.

404(b).

IV.

18
 Defendant also raises several arguments about the

voluntariness of incriminatory statements introduced into

evidence at trial.

The admissibility of a suspect’s statements to police is

governed by familiar principles. In order to safeguard a

suspect’s Fifth Amendment right against self-incrimination, the

United States Supreme Court in Miranda v. Arizona, established

specific warnings that must be given to the suspect. Miranda,

supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-

07. Miranda “warnings must be given before a suspect’s

statement made during custodial interrogation [may] be admitted

in evidence.” Dickerson v. United States, 530 U.S. 428, 431-32,

120 S. Ct. 2326, 2329, 147 L. Ed. 2d 405, 412 (2000). A

“custodial interrogation” is defined as “questioning initiated

by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any

significant way.” Miranda, supra, 384 U.S. at 444, 86 S. Ct. at

1612, 16 L. Ed. 2d at 706. Failure to give Miranda warnings to

a suspect prior to custodial interrogation “creates a

presumption of compulsion,” warranting suppression of any

statements made. Oregon v. Elstad, 470 U.S. 298, 307, 105 S.

Ct. 1285, 1292, 84 L. Ed. 2d 222, 231 (1985).

Whether or not a person is in custody is an objective

determination, based on “how a reasonable [person] in the

19
suspect’s position would have understood his situation.”

Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151,

82 L. Ed. 2d 317, 336 (1984); see also State v. P.Z., 152 N.J.

86, 103 (1997) (explaining determination of custody is “based on

the objective circumstances”). Moreover, “‘custody in the

Miranda sense does not necessitate a formal arrest . . .’” P.Z.,

supra, 152 N.J. at 103 (quoting State v. Lutz, 165 N.J. Super.

278, 285 (App. Div. 1979)). “The critical determinant of

custody is whether there has been a significant deprivation of

the suspect's freedom of action based on the objective

circumstances, including the time and place of the

interrogation, the status of the interrogator, the status of the

suspect, and other such factors.” Ibid. Thus, a suspect may be

in custody in various environments, including one’s own home or

a public place, and with or without physical restraints. Ibid.

In light of our holding that impermissible N.J.R.E. 404(b)

evidence tainted this trial, we decline to address defendant’s

factual and legal arguments about 1) the timing of her Miranda

warnings; and 2) whether, as defendant asserts, she was

subjected to custodial interrogation throughout her questioning

by Patrolman Buss and uttered incriminating statements both

prior to receiving those warnings and afterward, implicating

concerns about question-first, warn-later situations. Suffice

it to say that this Court has spoken on the analysis to be

20
applied for the latter issue raised by defendant. See State v.

O’Neill, 193 N.J. 148, 180 (2007) (establishing standards

regarding admissibility of successive inculpatory statements in

“question-first, warn-later” instances). However, when this

matter is retried and if the prosecutor seeks to elicit

defendant’s response to Patrolman Buss’ simple “What is this?”

question, defendant may renew her request for a new Jackson-

Denno hearing. We cannot rely on the Jackson-Denno hearing

judge’s factual findings and analysis in light of the

significant factual difference in the patrolman’s testimony at

the pre-trial hearing and at trial, and the important role that

those facts, as understood by the Jackson-Denno hearing judge,

played in that court’s scrutiny of the custodial interrogation

issue. It necessarily affects the validity of the

constitutional analysis that led to the denial of the motion to

suppress defendant’s statements. Moreover, the present status

of the record makes review of the custodial nature of the place

and manner of interrogation not possible on this appellate

record.

V.

Therefore, we hold that the admission of evidence of

defendant’s other crimes, wrongs or acts was contrary to

N.J.R.E. 404(b), and that such admission constituted harmful

error. Defendant’s conviction is vacated and the matter is

21
remanded to the Law Division for new trial proceedings

consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.

22
 SUPREME COURT OF NEW JERSEY

NO. A-85 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELINA NICOLE CARLUCCI,

Defendant-Appellant.

DECIDED March 13, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE/
CHECKLIST VACATE AND
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6

1