STATE OF NEW JERSEY v. TRAVIS FLOOD
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3638-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TRAVIS FLOOD,
Defendant-Respondent.
__________________________
Argued March 23, 2022 – Decided April 21, 2022
Before Judges Hoffman, Whipple, and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment No. 18-11-1521.
Patrick Galdieri, II, Assistant Prosecutor, argued the
cause for appellant (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Patrick Galdieri, II, of
counsel and on the brief).
John P. Flynn, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; John P. Flynn, of counsel
and on the brief).
PER CURIAM
By leave granted, the State appeals from a Law Division order granting
defendant's motion to sever the trial of counts charging controlled dangerous
substance (CDS) offenses allegedly committed on August 22, 2018—including
strict liability for drug-induced death—from counts charging CDS offenses
allegedly committed the day after the victim's overdose death. The State also
appeals from an order, issued by another Law Division judge, denying the
prosecutor's motion for reconsideration. After carefully reviewing the record in
light of the applicable legal principles, including the deferential standard of
appellate review we apply to trial court severance decisions, we affirm the trial
court's decision to grant defendant's severance motion.
I.
We discern the following facts from the grand jury record, mindful that
this matter has not yet been tried and that defendant is presumed innocent. Iqbal
Singh arranged to purchase CDS from an individual he knew as "Kevin D" and
from whom he had previously purchased narcotics on several occasions. The
meeting took place on August 22, 2018 at a motel in Sayreville. Iqbal's 1 friend,
1
Because two participants in these events share the same last name, we use
their first names to avoid confusion. We mean no disrespect in doing so.
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Jazveer Singh, drove Iqbal to the motel. There, Iqbal met "Kevin D" in the
parking lot and purchased a quantity of cocaine in exchange for $200. Jazveer
observed the transaction. After the drug deal was consummated, Iqbal and
Jazveer drove to a residence in Old Bridge, where Iqbal distributed the cocaine
to his waiting friends.
Jazveer, the only one who did not ingest the cocaine, stepped outside to
take a telephone call. When he reentered the residence, he saw all six of his
friends on the floor, unconscious. Jazveer called 9-1-1 and reported the
emergency.
An officer from the Old Bridge Police Department responded to the 9-1-
1 call and found six individuals unconscious from a suspected drug overdose.
Police administered Narcan and five of the six regained consciousness. The
sixth individual could not be revived and was pronounced dead at the scene.
Police found dollar bills with white, powdery residue near where the six
individuals had been found unconscious. Believing these bills may have been
used to ingest CDS, police conducted a field test on the bill that appeared to
have the most residue. The test showed the presence of fentanyl. The autopsy
report by the Medical Examiner later attributed the cause of death to acute
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cocaine, fentanyl, and ethanol toxicity, caused by the combination of cocaine,
fentanyl, and alcohol found in the victim's system.
Later that night at the hospital, Iqbal told Middlesex County Prosecutors
Office (MCPO) Detective Joe Celentano that he had purchased cocaine from an
individual he knew as "Kevin D." Iqbal provided to police "Kevin D's" phone
number, stored in the contact list on his cell phone. Police determined that the
telephone number was associated with defendant. The MCPO then assembled a
photo array that included defendant's photo and five filler photos. Another
detective with the MCPO administered the photo array identification procedure
to Iqbal. Iqbal selected defendant's photo from the array, positively identifying
him as the person from whom he had purchased the cocaine just before the
overdose event. Iqbal agreed to cooperate and to assist police in their
investigation.
The following day, Iqbal arranged to meet "Kevin D" again, this time on
police instructions. They set the meeting place at a hotel in West Windsor.
When defendant arrived for the meeting, waiting officers placed him under
arrest. A search of defendant's vehicle revealed suspected CDS. State Police
laboratory tests positively identified methamphetamine and cocaine.
A-3638-20
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In November 2018, a Middlesex grand jury returned an indictment
charging defendant with third-degree distribution of cocaine, N.J.S.A. 2C:35-
5(a)(1), (b)(3) (count one); third-degree distribution of fentanyl, N.J.S.A. 2C:35-
5(a)(1), (b)(5) (count two); first-degree strict liability for drug-induced death,
N.J.S.A. 2C:35-9 (count three); second-degree possession of cocaine with intent
to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) (count four); and second-degree
possession of methamphetamine with intent to distribute, N.J.S.A. 2C:35-
5(a)(1), (b)(9)(a) (count five). The indictment alleged that counts one, two and
three were committed on August 22, 2018, and that counts four and five were
committed on August 23, 2018.
In September 2020, defendant filed a motion to sever the counts related to
the alleged August 22 offenses—including the strict liability homicide—from
the counts pertaining to the alleged August 23 offenses, arguing prejudicial
joinder.2
2
Defendant also moved to dismiss part of the indictment claiming certain
alleged offenses were improperly venued in Middlesex County. Although
defendant's appeal brief raises that issue, defense counsel at oral argument
acknowledged that defendant did not cross-appeal the denial of his venue
motion. Accordingly, that issue is not properly before us and we decline to
address it.
A-3638-20
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On January 14, 2021, Judge Joseph L. Rea heard oral arguments and
granted defendant's motion to sever the August 22 charges from the August 23
charges for purposes of trial.
On February 2, 2021, the State filed a motion for reconsideration of the
grant of severance. The reconsideration motion was heard by a different judge.
On June 17, 2021, Judge Thomas J. Buck heard oral arguments and made
findings on the record in an oral opinion. On June 22, 2021, Judge Buck issued
an order denying the State's motion for reconsideration.
The State thereafter filed a motion for leave to appeal the grant of
severance and denial of reconsideration, which we granted. The State raises the
following contention for our consideration:
POINT I
THE TRIAL COURT'S SEVERANCE RULING
AMOUNTED TO AN ABUSE OF DISCRETION
REQUIRING REVERSAL.
More specifically, the State argues that both Law Division judges
misapplied Rules 3:7-6 and 3:15-2(b). The State contends that the August 22
and August 23 charges were sufficiently similar to justify permissive joinder,
asserting there was at least "some connection between [the] separate counts
rendering the evidence probative of a material issue in [the] other charge."
A-3638-20
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Recognizing that Rule 3:15-2(b) prohibits joinder when "it appears that a
defendant or the State is prejudiced," the State argues that because it bears the
burden of proving identity, and because defendant refuses to stipulate to being
the person who distributed CDS to Iqbal, "defendant's identity was a material
issue at trial and proof of defendant's identity was essential" to the State's ability
to prove that defendant was the person who sold fentanyl-laced cocaine to Iqbal
on August 22. The State adds that any danger of prejudice can be cured with a
limiting jury instruction.
We begin our analysis by acknowledging the legal principles governing
this appeal.3 The scope of our review is limited. We afford deference when
reviewing a trial court's decision whether to try a defendant on multiple counts
simultaneously or to sever counts. State v. Sterling, 215 N.J. 65, 73 (2013).
Additionally, "[t]he decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." State v. Scott, 229 N.J. 469, 479 (2017)
(quoting In re Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383–
84 (2010)). We thus apply "a deferential standard in reviewing a trial court's
evidentiary rulings and uphold its determinations 'absent a showing of an abuse
3
Because we affirm Judge Rea's initial decision to grant defendant's suppression
motion, we need not review the rigorous legal standard for granting a motion for
reconsideration. See R. 2:11-3(e)(2).
A-3638-20
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of discretion.'" Ibid. (quoting State v. Perry, 225 N.J. 222, 233 (2016)).
Relatedly, "[a] reviewing court must not 'substitute its own judgment for that of
the trial court's unless there was a "clear error in judgment"—a ruling "so wide
of the mark that a manifest denial of justice resulted."'" Ibid. (quoting State v.
Marrero, 148 N.J. 469, 484 (1997)). We add that deference is especially
appropriate when, as in this case, two judges have examined the facts and
reached the same conclusion. Cf. State v. Locurto, 157 N.J. 463, 474 (1999)
("Under the two-court rule, appellate courts ordinarily should not undertake to
alter concurrent findings of facts and credibility determinations made by two
lower courts absent a very obvious and exceptional showing of error.") (citing
Midler v. Heinowitz, 10 N.J. 123, 128–29 (1952)).
Defendant argues that for purposes of strict liability for drug-induced
death, the possession-with-intent-to-distribute offenses alleged to have occurred
after the overdose death constitute "other crimes." The law is well-settled that
evidence of other crimes is generally excluded at trial and is admissible only for
the limited purposes set forth in N.J.R.E. 404(b). The general rule excluding
other crimes evidence is based on the well-recognized potential for such
evidence to prejudice a defendant by suggesting to a jury that he or she has a
propensity to commit crimes. See State v. Weeks, 107 N.J. 396, 406 (1987).
A-3638-20
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Because of the dangers its admission risks, "evidence proffered under Rule
404(b) 'must pass [a] rigorous test.'" State v. Garrison, 228 N.J. 182, 194 (2017)
(alteration in original) (quoting State v. Kemp, 195 N.J. 136, 159 (2008)).
In State v. Cofield, the Court adopted a four-part test to determine the
admissibility of other bad acts and crimes evidence. 127 N.J. 328, 338 (1992).
To be admissible under N.J.R.E. 404(b), the evidence: (1) must be relevant to a
material issue which is genuinely disputed; (2) the other conduct must be similar
in kind and must have occurred reasonably close in time to the events at issue
in the criminal trial; (3) evidence of the other conduct must be clear and
convincing; and (4) its probative value must not be outweighed by prejudice to
the defendant. Ibid.; accord State v. Green, 236 N.J. 71, 81–82 (2018).
In this case, the State argues that the alleged August 23 crimes are relevant
to prove the identity of the person who sold CDS to Iqbal on August 22. In
Sterling, the Court recognized that "evidence of a later crime may be admitted
on the issue of identity when defendant's connection to the first crime was
established by specific evidence discovered during the second crime." Sterling,
215 N.J. at 92. Such evidence "may also be admitted on the issue of identity
when a particular weapon or disguise used in one crime connects a defendant to
another offense." Id. at 93 (citing State v. Gillispie, 208 N.J. 59, 88 (2011)
A-3638-20
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(admitting evidence of prior crime where defendant used same gun); State v.
Hardaway, 269 N.J. Super. 627, 630 (App. Div. 1994) (allowing limited
evidence of later robbery to prove defendant's presence at killing because same
gun was used in both crimes); and State v. Porambo, 226 N.J. Super. 416, 423–
24 (App. Div. 1988) (permitting evidence of separate robbery where distinctive
mustache disguise connected defendant to both robberies)).
As a general matter, "[t]he test for assessing prejudice is 'whether,
assuming the charges were tried separately, evidence of the offenses sought to
be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the
remaining charges.'" Sterling, 215 N.J. at 73 (alteration in original) (quoting
State v. Chenique-Puey, 145 N.J. 334, 341 (2013)). It is "[t]he admissibility of
the evidence in both trials [that] renders inconsequential the need for severance."
State v. Davis, 390 N.J. Super. 573, 591 (App. Div. 2007) (citation omitted).
We emphasize that the Court in Sterling held that "[a] court must assess whether
prejudice is present, and its judgment is reviewed for an abuse of discretion."
215 N.J. at 73 (citing Chenique-Puey, 145 N.J. at 341).
We add that under Rule 3:7-6, two or more offenses may be tried in the
same proceeding "if the offenses charged are [(1)] of the same or similar
character or [(2)] are based on the same act or transaction or [(3)] on two or
A-3638-20
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more acts or transactions [either] [(a)] connected together or [(b)] constituting
parts of a common scheme or plan." However, if such joinder would be
prejudicial, the Rules allow for relief under Rule 3:15-2. Ibid. Under that rule,
if "it appears that a defendant or the State is prejudiced by a permissible or
mandatory joinder of offenses or of defendants in an indictment or accusation
the court may order an election or separate trials of counts, grant a severance of
defendants, or direct other appropriate relief." R. 3:15-2(b). As the Court
explained in Sterling,
The relief afforded by Rule 3:15-2(b) addresses the
inherent "danger[,] when several crimes are tried
together, that the jury may use the evidence
cumulatively; that is, that, although so much as would
be admissible upon any one of the charges might not
have persuaded them of the accused's guilt, the sum of
it will convince them as to all." State v. Pitts, 116 N.J.
580, 601 (1989) (quoting United States v. Lotsch, 102 F.2d 35, 36 (2d Cir. 1939)).
[Sterling, 215 N.J. at 73.]
Applying these foundational principles to the record before us, we do not
believe that either Law Division judge committed an abuse of discretion in
balancing the need for joinder against the risk of unfair prejudice to defendan t.
As our Supreme Court explained in State v. Darby, the evidence must be both
"relevant to prove a fact genuinely in dispute" and "necessary as proof of the
A-3638-20
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disputed issue." 174 N.J. 509, 518 (2002). Judge Rea determined that although
defendant has not agreed to stipulate that he was the person who sold drugs to
Iqbal on August 22, the true disputed issue in this case is not identity but rather
whether the State can prove the causation element of the strict-liability-for-drug-
induced death offense. Further, the judge noted that if, in the course of trial,
identity did present itself as a genuinely disputed issue, the State would retain
the right to request a Cofield hearing to introduce the barred evidence in rebuttal.
Because the trial court explicitly left the door open for the State to assert at trial
that evidence pertaining to the August 23 is needed to establish identity, if it
turns out identity is genuinely disputed, we do not believe the State has been
prejudiced by the decision to try the two sets of charges separately.
Furthermore, in balancing the State's need to present such evidence
against the risk of unfair prejudice to defendant, Judge Rea reasoned that the
State "[has] a lot of evidence of identity, 4 and . . . the [potential] prejudice of
counts four and five, particularly with regard to drug-induced death, . . . is
monumental." Judge Rea expressed concern that "if it's a close call on [the strict
4
We note that, in assessing whether and to what extent defendant's identity was
at issue, Judge Rea remarked that the State had "evidence that Mr. Iqbal knew
defendant from three or four prior times when he brought drugs from
[defendant]."
A-3638-20
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liability for drug-induced death] count, I think there's a serious danger that a
jury could say [']ah, he's just a drug dealer anyway. Find him guilty on count
three.['] . . . [T]he potential prejudice of four and five mandate that . . . they be
severed." We decline to second-guess either Judge Rea's assessment of the
State's ability to prove identity or his assessment of the risk that evidence of
post-overdose-death drug crimes would prejudice defendant with respect to the
jury's consideration of the homicide.
Nor are we persuaded by the State's argument that any potential for unfair
prejudice could be eliminated by proper jury instructions limiting how the jury
might consider the August 23 offenses to prove that defendant committed the
August 22 crimes. In rejecting the State's argument in this particular
application, we accept that juries are presumed to follow a trial court's
instructions. See State v. Burns, 192 N.J. 312, 335 (citing State v. Nelson, 155 N.J. 487, 526 (1998)) ("One of the foundations of our jury system is that the jury
is presumed to follow the trial court's instructions."). But, as the State
acknowledged at oral argument, many convictions have been reversed in cases
where trial courts permitted prosecutors to present other crimes evidence under
the rubric of N.J.R.E. 404(b). We add that the rigorous test devised un der
N.J.R.E. 404(b), would not be necessary if all that were needed was a limiting
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instruction to mitigate the potential for prejudice. The Court's firm admonition
in Sterling that a trial court "must assess whether prejudice is present," 215 N.J.
at 73, would ring hollow if such prejudice in any event could be addressed by a
limiting instruction. The Law Division judges appropriately accounted for all
relevant circumstances, including the degree to which identity is likely to be
genuinely contested and the other proofs of identity available to the State.
Accordingly, we do not believe the Law Division judges abused their discretion
in concluding that, in this case, the two sets of charges are better tried separately.
We likewise reject the State's argument that we should overturn the trial
court's severance ruling because it will be a waste of resources to convene two
trials. Trial judges, no less than the parties and victims, have a keen interest in
avoiding unnecessary trials. We decline to rely on notions of judicial economy
to second-guess the severance decision in this case. We also decline to speculate
on the outcome of the first trial or the impact that outcome might have on the
resolution of the remaining counts, especially given the prevalence of negotiated
dispositions.
In sum, we do not believe both Law Division judges abused their
discretion in assessing the potential for prejudice if both sets of charges were to
be tried together. See Sterling, 215 N.J. at 73 ("A court must assess whether
A-3638-20
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prejudice is present, and its judgment is reviewed for an abuse of discretion." ).
While we might not have reached the same conclusion were it our decision to
make in the first instance, we see no basis for appellate intervention applying an
abuse-of-discretion standard. In view of our holding that Judge Rea did not
abuse his discretion in granting defendant's severance motion, we need not
address whether Judge Buck erred in denying the State's motion for
reconsideration applying the rigorous standard for such applications. See supra
note 2. To the extent we have not specifically addressed them, any remaining
arguments raised by the State lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirm.
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