dissenting.
In this case, the majority holds that it was error for the trial court to admit evidence of a decedent’s recent conviction and custodial sentence for welfare fraud1 concerning decedent’s character, ante, 187 N.J. at 611-12, 902 A.2d at 249 (2006), and that such error merits a remand to the trial court. Ante, 187 N.J. at 612, 902 A.2d at 249 (2006). I respectfully dissent as to both conclusions.
I.
As the majority recognizes, in respect of proofs of damages in a wrongful death action, “mental, moral and physical characteristics of the decedent that actually bear on the relationship of parent and child and the concomitant ‘probability1 of lost advice, guidance and counsel are legitimate factors for jury consideration under Green [v. Bittner, 85 N.J. 1, 4, 424 A.2d 210 (1980)].” Ante, 187 N.J. at 610-11, 902 A.2d at 248 (2006). Common sense tells us that, in the context of determining a damages award, there can be few more relevant proofs of a decedent’s mental and moral characteristics that bear on child-rearing qualities than a recent conviction and incarceration for a crime. That is even more so when, as here, the crime for which the decedent was convicted and incarcerated was welfare fraud, a crimen falsi or crime of falsehood or dishonesty.
*614Recognizing the relevance of the decedent’s prior conviction to plaintiffs damages claim, the Appellate Division reasoned that the standard by which the admissibility of the decedent’s prior conviction was to be gauged was straightforward: was the evidence relevant under N.J.R.E. 401, and, if so and applying the balancing test of N.J.R.E. 403, did the undue prejudice of that evidence substantially outweigh its probative value? The panel’s reasoning is instructive and is set forth at length:
Relevant evidence is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Except as otherwise provided by the New Jersey rules of evidence or by law, “all relevant evidence is admissible.” N.J.R.E. 402. Nevertheless, “relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury____” N.J.R.E. 403. The decision to exclude or admit evidence pursuant to N.J.R.E. 403 is within the discretion of the trial judge. Benevenga v. Digregorio, 325 N.J.Super. 27, 32, 737 A.2d 696 (App.Div.1999), certif. denied, 163 N.J. 79, 747 A.2d 287 (2000). We review these decisions under the abuse of discretion standard. Ibid, These rulings are entitled to substantial deference. State v. Morton, 155 N.J. 383, 453, 715 A.2d 228 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001).
N.J.R.E. 404(c) provides that “[ejvidence of a person’s character or trait of character is admissible when that character or trait is an element of a claim or defense.” This rule “applies only to those relatively few situations where under the substantive law of New Jersey a person’s character or a trait of his character is actually in issue.” Biunno, Current N.J. Rules of Evidence, comment 18 on N.J.R.E. 404 (2004).
Character is in issue in a wrongful death case. N.J.S.A 2A:31-5 provides that in a wrongful death action, “the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent.” Those damages “represent the actual pecuniary or financial loss which plaintiff contends has been and will in the future be suffered by the survivors due to the death of the decedent.” Model Jury Charge (Civil) 6.16, “Wrongful Death,” (1984). In a wrongful death case, “[t]o determine the amount of damages to be awarded ... all circumstances and probabilities which bear upon that financial loss may be considered.” Ibid. Several factors are listed for the jury’s consideration. Ibid. One is “the benefit given by the decedent to a survivor or survivors in the form of services or assistance rendered by the decedent and in guidance and training which may have been offered by the decedent to the survivors.” Id, at 6.16.4. “In considering those various factors, and in ascertaining the probabilities of pecuniary loss, [the jury] should also consider the decedent’s personality and character, his/her habits and customs and the relationship that existed between the decedent and the survivors.” Id. at 6.16.5. Thus, the decedent’s character is placed in issue.
*615Here, decedent’s welfare fraud conviction was relevant to the damages element of the wrongful death claims. It had “a tendency in reason to prove or disprove” that prior unlawful activity that occurred within three or four years of her death, affected the quality of her life and the quality of the advice and guidance she could give to her sons. N.J.R.E. 401. After a thorough N.J.R.E. 403 analysis, the trial court found that introducing evidence of the conviction was not substantially outweighed by the risk of undue prejudice. Giving the trial judge the substantial deference he is due, we find no abuse of discretion. The evidence was highly probative of the damages claim. See Ocasio [v. Amtrak, 299 N.J.Super. 139, 160, 690 A.2d 682 (App.Div.1997) (evidence of drug abuse highly probative of damages claim)]. The nature of the crime, welfare fraud, bears directly upon decedent’s character, which impacts the quantum of damages to which her children may be entitled for the loss of her guidance. Once again, the question becomes one of weight rather than admissibility.
I fully concur with the Appellate Division’s careful treatment of this issue. To hold otherwise, as the majority does, blurs the distinction among types or categories of damages our cases strive to achieve. As Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48, 477 A.2d 1224 (1984), explains:
The three basic types of legal damages are compensatory, nominal, and punitive. Compensatory damages are designed to compensate a plaintiff for an actual injury or loss. Nominal damages, unlike compensatory damages, do not attempt to compensate the plaintiff for an actual loss. Eather, they are a trivial amount "awarded ... as a judicial declaration that the plaintiffs right has been violated.” Finally, punitive damages are awarded as punishment or deterrence for particularly egregious conduct.
[(emphasis supplied; citations omitted).]
The vice of the majority’s conclusion that it was error to admit proof of the decedent’s welfare fraud conviction is that it eliminates the requirement that compensatory damages be tethered to actual losses. If the jury is not to be told that the decedent is a convicted felon, the only proofs before the jury are those elicited from her children in plaintiffs case-in-chief that she was a wonderful, nurturing mother who was ever-present in her children’s lives. According to the majority, and notwithstanding these claims, the jury is to remain unaware of, and therefore barred from considering, how the decedent could have discharged the duties of a wonderful parent during her 30-day stay in the county jail. Both *616plaintiffs and defendants are entitled to fair trials, and the majority’s result violates that core principle of fundamental fairness.
II.
That said, I also dissent from the majority’s conclusion that the trial court’s admission of the decedent’s prior conviction must play a role in the trial court’s renewed consideration of plaintiffs new trial motion. It is clear that the decedent’s conviction was relevant as to damages only, and not as to liability. It is equally clear that, because the jury determined there was no cause of action on plaintiffs negligence claims against defendants, the jury never reached the issue of damages. It was and remained plaintiffs obligation to protect his record. Yet, plaintiff made no application to bifurcate this trial between liability and damages as provided by R. 4:38—2(b). Indeed, plaintiff did not consider the issue of the decedent’s conviction to be of sufficient import to include in his new trial motion.2
Therefore, because plaintiff did not request that “the issues of liability and damages be separately tried[,]” R. 4:38-2(b), the trial court’s judgment should stand and a remand is inappropriate here.
*617III.
In my view, the judgment of both the trial court and the Appellate Division should be affirmed. Thus, I respectfully dissent.
For reversal and remandment—Chief Justice PORITZ, and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE—6.
For affirmance—Justice RIVERA-SOTO—1.
Decedent’s welfare fraud conviction was in 1994; she arrived at the emergency room on December 11, 1997 and died in April 1998.
Plaintiff's notice of motion for a new trial states that "in support of this application, plaintiff shall rely upon the attached certification and brief of [plaintiff's counsel].” The new trial motion certification of plaintiff's counsel consists of nineteen numbered paragraphs, not one of which mentions the admission of the decedent’s conviction as a ground for relief; plaintiff did not include in the appendix his brief in support of his new trial motion. At the argument on plaintiff's new trial motion, the trial court acknowledged, as the majority notes, that "this is a very close case on the motion" and that it was "just short” of presenting the "clear and convincing appearance of a miscarriage of justice.” Ante, 187 N.J. at 603-04, 902 A.2d at 243-44 (2006). The trial court, however, did not make those observations in reference to the admission of the decedent’s conviction. Those remarks were made in the context of plaintiff's sole claim on his motion for a new trial: that because ”[a]ll parties agreed that the standard of care required a surgeon to respond to the consult requested [and there was a two-hour delay in the response], there had to be negligence either in the requesting of the consult or in responding to the consult.” That is the limited context in which the trial court made its remarks, and it is in that limited context that they must be examined.