STATE OF NEW JERSEY v. FRED BELEN and ALEXANDER LARA -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2440-11T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FRED BELEN and

ALEXANDER LARA,

Defendants-Respondents.

________________________________

July 5, 2012

Submitted May 30, 2012 - Decided

Before Judges Nugent and Carchman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-0912.

Warren W. Faulk, Camden County Prosecutor, attorney for appellant (A. Victoria Shilton, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondents (Michele Adubato, Designated Counsel, on the brief).

PER CURIAM

By leave granted, the State of New Jersey appeals from an order of the Law Division granting defendants Fred Belen and Alexander Lara's motion to sever certain counts from a twenty-six-count indictment. The indictment resulted from a series of seven robberies that had occurred on four non-consecutive days over a period of several weeks. The motion judge determined that the matters should be severed into four separate trials. We affirm.

These are the relevant facts that evolved from the grand jury proceedings that resulted in the defendants' indictments. At approximately 9:00 p.m. on May 15, 2010, while walking on Richie Avenue in Collingswood, Mark Tomaszewicz noticed a white sport utility vehicle (SUV) pull up adjacent to him. A black male wearing a dark shirt exited the front passenger side of the vehicle and approached Tomaszewicz from behind. The male pointed a "dark colored handgun" at Tomaszewicz, demanding his wallet; Tomaszewicz complied. After taking the wallet, the robber got back into the passenger seat of the vehicle, and drove in the direction of Route 30 east toward South Park Drive. Although Tomaszewicz could not provide a detailed description of the assailant, he stated that at least one other person, the driver, was in the vehicle.

Approximately ten minutes later, the Collingswood Police Department received a call regarding a second armed robbery that occurred on South Park Drive near Cooper River Park. According to Investigator Peter Longo of the Major Crimes Unit of the Camden County Prosecutor's Office, one could drive from Richie Avenue to Cooper River Park "probably in less than ten minutes or so[.]" The victims of the second robbery were Catherine Lynch and Kevin Impellizeri, who were walking near the Marina parking lot on Cooper River. A white SUV pulled up to Lynch and Impellizeri, and a black male alighted from the front passenger seat, pointed a black handgun at them, and said something to the effect of "give me it all." Lynch turned over her purse, and Impellizeri turned over his wallet. They described the gunman as black, about five feet, ten inches to about six feet tall, with short hair and wearing a black t-shirt. They also described the driver as a heavyset, black man wearing a white

t-shirt. Shortly thereafter, the Delaware River Port Authority police stopped a white SUV entering Philadelphia, believing the vehicle may have been related to the robberies, but neither Lynch nor Impellizeri could positively identify that car or itsoccupants.

Two days later, at approximately 11:00 p.m., Haddon Township Police officers were dispatched to a robbery on Route 130 at a Citgo gas station. Gurbachen Singh was assisting a customer when he observed a white Ford Explorer SUV with a New Jersey license plate, which he was able to identify, pull into the station. A black male wearing a black scarf on his head with eyeholes cut in the scarf exited the passenger side of the vehicle, approached Singh, and demanded money. The customer made a similar report to the police, and also stated that the driver of the white Ford Explorer was a black male.

Additionally, the vehicle's license plate number was captured on surveillance video. The police traced the license plate number to a 2000 Jeep Cherokee. The registered owner of the Cherokee informed the police that she had sold the vehicle to a used car dealer in Collingswood, which, in turn, the police discovered had then been sent to an auto repair shop in Camden. The police later found the Jeep on an open part of the repair shop's lot, with the license plate missing.

On May 25, 2010, at approximately 9:30 p.m., the attendant at the U.S. gas station on Route 70 in Pennsauken, Kapil Arand, saw a white SUV pull into the lot and park behind the attendant's booth. Because Arand thought it was strange that the vehicle did not pull up to the air hose or gas pump, he walked toward the vehicle to make inquiry. As he approached, Arand noticed a black male wearing a ski mask crouch down between the SUV and the booth. Concerned about being robbed, Arand ran to a nearby Wendy's restaurant. While feeling safe, Arand looked back and saw the initial suspect and the driver, who was also wearing a mask, enter and search the attendant's booth. Later, because there was no surveillance camera at the station, Arand could neither discern the license plate number, nor determine whether the suspects had taken anything.

At approximately 10:20 p.m. on May 31, 2010, Camden County Park Police responded to a call reporting an armed robbery. The victim, Rafael Rosada, was walking his dog near the Newton Creek Park in Collingswood shortly after ten o'clock when a white SUV (Ford Explorer) pulled up to the curb just ahead of him. Rosada reported that as he walked past the vehicle, one black male and one dark-skinned Hispanic male exited the vehicle. The driver grabbed him and restrained him from behind, while the passenger pointed a silver handgun at him and took his wallet from his pocket.

Shortly thereafter, at about 10:30 p.m., the Park Police received another report of a robbery on North Park Drive in Cherry Hill near Cooper River Park. The victim, Aswin Patel, was walking on the road when a white SUV pulled up. A dark-skinned male, wearing a striped shirt and brandishing a silver handgun, exited the passenger side of the vehicle and put a gun to Patel's head, ordering Patel to give him everything he had or he would be shot. The gunman then took Patel's money, threw Patel's keys into the grass, got back into the passenger side of the vehicle, and left.

About five minutes after Patel reported the robbery, the Park Police received a third robbery report, also on North Park Drive. While loading his car after a picnic, Rubin Aguilar was approached by a white SUV whose headlights were not illuminated, even though it was past 10:00 p.m. A male, wearing a grey ski mask, exited the SUV holding a silver-colored gun and placed the gun to Aguilar's head, ordering him to turn over everything. The gunman then pushed Aguilar to the ground, put the gun to his head, and stated he was going to kill Aguilar. Aguilar reported hearing three clicks of the gun, as if the trigger was being pulled, but no shots were fired.

Aguilar's friend, Carmen Denato, was nearby and observed the robbery. Denato yelled at the suspect, attempting to scare him off. Another witness, Terry Craig, who not only heard Denato and Aguilar yelling about the suspect and the gun, but also saw the suspect drive away, got into his own car to follow the suspect. While he was driving after the suspect, he called the police. During his pursuit, Craig flagged down a sheriff's van and advised the officer what had happened.

The sheriff's officer then proceeded to track down the suspect, and several minutes later pulled over a white Ford Explorer that was heading from Route 130 to the Admiral Wilson Boulevard overpass. The officer was able to identify the license plate number. The tags on the SUV had a different license plate number from the one identified during the Citgo gas station robbery. Both defendants were inside the Ford Explorer; Belen was in the passenger seat, and Lara was behind the wheel in the driver's seat. The officer found a pair of gloves and a grey knit ski cap with eyehole cutouts on Belen's lap. Under Belen's seat, the officer found a loaded, silver and grey Ruger handgun and $80. Inside the car was also a black piece of cloth with three hole cutouts, for two eyes and a nose, as well as an uncut piece of black cloth, and two New Jersey license plates with the same tag number as on the vehicle from the Citgo gas station robbery. Patel later identified Belen as the man who held him up at gunpoint.

A Camden County grand jury returned a single indictment containing twenty-six counts, charging defendants with offenses including and related to the various armed robberies.

Defendants filed a joint motion seeking to sever the counts pursuant to Rule 3:15-2 and to bifurcate the trial. The judge granted the motion, in part. Notably, the judge declined to specifically address the admissibility of each piece of evidence that would be used in proofs at trial, and the following colloquy ensued.

THE COURT: . . . . [W]hy [do] you disagree that I should separate out some of [the counts].

[PROSECUTOR]: . . . . The reason I disagree with Your Honor, is because initially I do feel that even if Your Honor severed them in the way that you've spoken of, the evidence from the 31st when the defendants are arrested, should be admissible in all of the other counts that you've severed.

The reason being is that that evidence is proof of their identity. It is proof of their preparation. They have a gun, they have various masks in the car that they didn't use each and every time. They have various license plates in the car that they didn t use each and every time.

So, those masks, and the separate set of license plates in the car from what's on the car, show that they planned to commit a series of events. And that they planned to be able to outwit the police basically by not doing the exact same thing every time. But by being prepared to vary it a little bit.

So, that evidence is very relevant to their identity, their knowledge, and their preparation in this plan.

So, I -- that's the primary reason.

If the evidence, when they were arrested, is admissible as the State says it should [be], because it's relevant to their identity, their intent, their preparation, and their planning, then there's no reason to sever them, because we're trying the same case in Your Honor's scheme four times over.

. . . .

THE COURT: Okay. I mean, it's not before me what evidence is going to be admissible as to each trial, because that's a separate thing possibly at some point.

I don't necessarily disagree with you that -- that that may -- some, if not all, of the evidence may be admissible at all of the trials.

But my concern here is especially in the case of the license plates being on the video, that that could be so prejudicial to the defendants that it would -- it just wouldn t be a fair trial at that -- at that point for them.

The judge severed the counts of the indictments and ordered four separate trials.

Essentially, although the judge considered factors other than the date, the judge ordered trials as to the offenses based on the dates when the offenses occurred. That is, the two robberies that both occurred on May 15, 2010 were joined for a trial; the three robberies that occurred on May 31, 2010 were joined for a trial; and the single robberies that occurred on May 17, 2010 and May 28, 2010, respectively, were each to be tried separately.

The court reasoned that the various robberies should be grouped by date and joined because they were "of similar character" in that each group occurred on a particular evening, "in the same town and in a similar manner." Both of the May 15 robberies were committed by assailants driving a white SUV, targeted pedestrians in residential neighborhoods, and involved "one assailant waiting in the vehicle while the other exited the vehicle to physically assault the victims." These offenses were severed from later robberies because their only commonality was the color and type of vehicle used in the crimes, which was "not enough of a similarity to qualify for joinder." Additionally, the May 31 robberies were severed because they occurred two weeks later and the suspects in the May 15 robbery used a black handgun, rather than a silver handgun.

The court also determined that the last robberies, resulting in defendants' apprehension, must be severed because "even if they did qualify for joinder, they would be severed pursuant to Rule 3:15-1(b) since defendants would be highly prejudiced" by the license plates found in the vehicle on the night of their arrest. The court reasoned that because the license plates were "compelling evidence of [defendants'] guilt with respect to the May 17[] robbery," the fourth prong of the Cofield1 test was not met.

Finally, the court joined the charges on the three robberies that occurred on May 31 because they were "similar in character in that they all occurred on the evening of May 31[] within the span of one hour and adjacent public parks in Camden County." Those offenses were also committed "in a very similar manner in that the assailants drove a white SUV and stopped next to the walking pedestrian[.]"

The State moved for a stay of the trial as well as leave to file an interlocutory appeal. We granted both applications, and this appeal followed.

On appeal, that State argues the court abused its discretion in granting defendants' motion to sever without analyzing the admissibility of each piece of evidence and in failing to specifically address each prong in its Cofield analysis.

Critical to our analysis of the issues on appeal is our standard of review.

Whether a severance should be granted is within the trial judge's discretion, and we will defer to that decision absent an abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). "Joinder is permitted when two or more offenses 'are of the same or similar character or are based on . . . 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.'" State v. Morton, 155 N.J. 383, 451 (1998) (quoting R. 3:7-6), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Joinder of offenses is generally appropriate where there is a sufficient nexus among the crimes such that proof of one crime would be admissible as proof in another pursuant to N.J.R.E. 404(b). See ibid.; Pressler & Verniero, Current N.J. Court Rules, comment 2.3.1 on R. 3:15-2 (2012).

However, a defendant may move for severance of offenses and separate trials of counts when joinder is potentially prejudicial. R. 3:15-2(b). Such a motion should not be regarded lightly because of the highly prejudicial nature of other-crimes or wrongs evidence. State v. Baker, 49 N.J. 103, 105, cert. denied, 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967). Although a defendant must offer "[m]ore than a cavil allegation of prejudice . . . to warrant an order for separate trials of properly joined offense[s]," State v. Reldan, 167 N.J. Super. 595, 598 (Law Div. 1979), the remedy of severance "should be liberally granted if there is a possibility of substantial harm." Pressler, supra, comment 1.1 on R. 3:7-6.

In deciding a motion for severance, the trial court must "weigh the interests of judicial economy and efficiency against the right of every accused to have the merits of his case fairly decided." State v. Scioscia, 200 N.J. Super. 28, 43 (App. Div.), certif. denied, 101 N.J. 277 (1985). Nonetheless, while the court may consider factors such as judicial economy and efficiency, State v. Moore, 113 N.J. 239, 276 (1988), the "key factor in determining whether prejudice exists from joinder of multiple offenses is whether the evidence of [those] other acts would be admissible in separate trials under [N.J.R.E. 404(b)]," State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div.) (internal quotation marks and citations omitted), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

Generally, to be admissible, evidence must be relevant, that is, it must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. 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 or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.

Under N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is inadmissible to prove a "defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Covell, 157 N.J. 554, 563 (1999) (citing State v. Stevens, 115 N.J. 289, 293 (1989)). However, evidence generally inadmissible under N.J.R.E. 404(b) is expressly admissible to prove other facts in issue, such as "'motive, intent, plan, knowledge, identity, or absence of mistake or accident.'" Covell, supra, 157 N.J. at 570 (quoting Stevens, supra, 115 N.J. at 293). Other-crimes evidence "may be admitted when relevant to some fact in issue not specifically referred to in N.J.R.E. 404(b)." Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, comment 15 on N.J.R.E. 404 (2011).

To be admissible under N.J.R.E. 404(b), other-crimes evidence must satisfy the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). Covell, supra, 157 N.J. at 564. Accordingly, to be admissible, evidence of other crimes or acts (1) must be relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) must have probative value that is not outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338. The fourth prong of this test incorporates the traditional probative value-prejudicial impact analysis required by N.J.R.E. 403. State v. Long, 173 N.J. 138, 162 (2002). However, the fourth prong is "more exacting than N.J.R.E. 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." State v. Rose, 206 N.J. 141, 161 (2011). It is important to note, however, "that the four Cofield prongs are not equally applied in all cases, and the courts require varying degrees of compliance with each prong depending on the facts of the case as well as the nature of the other conduct evidence and its relationship to the current case." Biunno, supra, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404(b).

The admissibility of other-crimes evidence is within the discretion of the trial court. Covell, supra, 157 N.J. at 564. The Supreme Court has held that "'[t]he trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).

We recognize that "[w]hen a trial court fails to employ the Cofield test to analyze the admissibility of other-crimes evidence, 'no deference is to be accorded the trial court's decision to admit that evidence; nor is that decision entitled to be reviewed under an abuse of discretion standard.'" State v. Reddish, 181 N.J. 553, 609 (2004) (quoting State v. Darby, 174 N.J. 509, 518 (2002)). Rather, where the court misapplies the law, this court shall "undertake a plenary review of whether the other-crimes evidence was admissible." Ibid.

Here, though the court did not systematically evaluate all of the other-crimes evidence under each of the four prongs of Cofield, the court acknowledges that it is applying a Cofield analysis in its ruling. Because the court's reasoning for severing the offenses into four trials, and for the joining of certain robberies in two of those trials, is based upon elements of a Cofield analysis, that is, the similarity, relevance, and prejudice of other-crimes evidence, we will apply an abuse of discretion standard.

In her analysis, the judge alluded to the various elements attendant to each set of robberies. She concluded that while there were similarities as to the color and type of vehicle used in the robberies, that was insufficient to support a joinder of these offenses. On the record before us, we cannot find that the judge abused her wide discretion in severing the various counts.

The State asserts that the judge failed to focus on the specific evidence to be presented. The flaw in that argument is that the State's own overarching theory was based not upon individual pieces of evidence, but how, when examined together, the robberies purportedly evidenced a common plan to perform quick, assaultive, snatch-and-grab type robberies upon pedestrians or gas station attendants. Further, the State's theory is premised on the idea that specific pieces of evidence were not part of each robbery because the "defendants took measures to thwart authorities from connecting all of the crimes." The court was justified in examining the robberies as the State presented them, that is, more broadly than the specific evidence presented.

Moreover, the State failed to identify what specific evidence it intended to adduce at trial. It is clear from the State's brief that it intended to prove that: the robberies "continued for seventeen days," all were committed by "two black/dark-skinned males," all involved "the same white SUV," a handgun was used in all but one of the robberies, all were committed within the same two-and-one-half hour period of one day (9:00 p.m. to 11:30 p.m.), and the robber made similar demands of his victims in each robbery ("give it all"). The judge found this insufficient linkage to warrant joinder.

We conclude that the State has failed to establish that the judge abused her wide discretion in ordering a severance.

A

1 State v. Cofield, 127 N.J. 328 (1992).