STATE OF NEW JERSEY VS. MAYTEE CORDERO
A-4061-12T1In this third-degree shoplifting case, the State sought an in limine ruling permitting it to introduce evidence of a previous alleged shoplifting incident involving defendant and her codefendant to prove intent and the absence of mistake. The trial judge declined to rule on the admissibility of the 404(b) evidence until after the defense case, although the judge provided his tentative view that the evidence would be admissible if defendant testified that she unknowingly removed the unpurchased merchandise. On appeal, defendant challenges the court's procedure, which she claims chilled her exercise of her right to testify. We affirm, holding that a trial court may, in its discretion, await the conclusion of a defendant's case before deciding the admissibility of 404(b) evidence to prove intent, or lack of mistake. Awaiting the rebuttal case enables the court to confirm the defense will actually be offered, and to assess the contours of the defense, which informs the court's decision regarding the relevance of the 404(b) evidence, and whether the risk of undue prejudice outweighs its probative value.