State of New Jersey v. Otway K. Garland

• Court: New Jersey Superior Court Appellate Division
• Decided: December 10, 2025
• Docket: A-1589-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the 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-1589-24

STATE OF NEW JERSEY,

Plaintiff-Appellant/ Cross-Respondent,

v.

OTWAY K. GARLAND,

Defendant-Respondent/ Cross-Appellant. _____________________________

Argued November 12, 2025 – Decided December 10, 2025

Before Judges Gilson and Vinci.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 24-11-2439.

Frank J. Ducoat, Deputy Chief Assistant Prosecutor, argued the cause for appellant/cross-respondent (Theodore N. Stephens II, Essex County Prosecutor, attorney; Hannah Faye Kurt, Assistant Prosecutor, of counsel and on the briefs).

Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant (Jennifer N. Sellitti, Public Defender, attorney; Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant Otway K. Garland was charged in a single indictment with

crimes allegedly committed in connection with the following events: an October

23, 2023 burglary in Newark; October 25, 2023 burglaries in Irvington; and an

October 27, 2023 robbery and subsequent eluding in Irvington. Defendant

moved to sever the charges, seeking three separate trials. On December 19,

2024, the court entered an order granting the motion in part severing the October

27 charges from the October 23 and 25 charges, which would be tried together.

By leave granted, the State appeals from the December 19 order

contending all the charges should be tried together in a single trial. Defendant

cross appeals contending the three sets of charges should be tried separately.

Having considered the record and applicable law, we affirm as modified in this

opinion.

I.

The State alleges that on October 23, 2023, defendant burglarized a

business on Ferry Street in Newark, taking two Samsung tablets and

approximately $300 in cash. Black and white surveillance video from inside the

A-1589-24 2 business showed a male suspect wearing a light-colored hooded sweatshirt,

light-colored pants, and light-colored sneakers. The suspect's face was partially

covered, but he had two visible tattoos on his face and tattoos on the backs of

his hands. The suspect was wearing a chain around his neck. Law enforcement

subsequently identified the suspect as defendant by comparing his recent

photograph in an unrelated matter to the surveillance video.

The State alleges that on October 25, 2023, defendant burglarized the

Valley Mall Plaza on Chancellor Avenue in Irvington and a business located

inside the mall. Law enforcement obtained surveillance video from inside the

mall and the surrounding area. Color surveillance video from the afternoon of

October 24, showed two individuals, one of whom was later identified as

defendant, driving into the mall parking lot in a blue 2020 GMC Terrain with

New Jersey registration G7*RU* (the GMC Terrain). Law enforcement later

determined the vehicle had been stolen in Jersey City earlier that day.

Defendant exited the driver's side of the vehicle and entered the mall. He

was wearing a beige hooded sweatshirt, blue jeans, and white and blue "Air

Jordan 12 Retro" sneakers. On color surveillance video from inside the mall,

defendant was seen "casing the security desk area" and he "removed a black

A-1589-24 3 handbag from the desk." He then exited the mall, ran back to the GMC Terrain

carrying a black bag, and drove out of the parking lot.

At approximately 11:30 p.m., defendant was seen on color surveillance

video entering the mall wearing the same clothing he was wearing earlier that

day. Defendant was accompanied by an unidentified individual wearing all

black clothing, a black face mask, and black gloves.

Shortly thereafter, defendant was seen on black and white surveillance

video tampering with the door to a business on the second floor of the mall using

a machete. He gained entry and removed $750 from three cash registers.

Defendant's hand tattoos were clearly visible as he removed cash from the

registers and, at one point, he looked up providing a clear image of his face and

facial tattoos. He was wearing a similar chain and light-colored hooded

sweatshirt and had what appeared to be the same hand and facial tattoos as the

suspect in the October 23 burglary in Newark.

The State alleges that on October 27, 2023, defendant went to a gas station

on Springfield Avenue in Irvington driving the GMC Terrain. Defendant

approached a gas station employee and asked to use his cell phone as a flashlight

to search for something in his vehicle. The gas station employee recognized

defendant from previous interactions with him and agreed.

A-1589-24 4 Defendant placed the employee's phone in his pocket and got back into

the vehicle. The employee asked for his phone and attempted to open the door.

Defendant punched him in the arm. The employee saw a black handgun in

defendant's right front pocket. Defendant fled in the GMC Terrain. The

employee subsequently identified defendant from a photo array.

A police officer canvassing the area in a police vehicle shortly after the

robbery saw the GMC Terrain and attempted to conduct a motor vehicle stop.

The GMC Terrain fled at a high rate of speed with the officer in pursuit. The

high-speed chase ended in Newark when defendant's vehicle collided with

multiple police vehicles. Defendant and two police officers were injured in the

collision. Defendant was arrested at the scene. When apprehended, defendant

was wearing multiple chains, one of which appeared to be the chain he was

wearing during the October 23 and October 25 burglaries. The phone taken

during the earlier gas station robbery was in the vehicle. Black clothing

matching the clothing worn by the unidentified individual with defendant on

October 25 was also located in the vehicle.

Defendant was initially charged in three separate indictments. On

November 22, 2024, an Essex County grand jury returned a twenty-count

superseding indictment charging defendant as follows: (1) counts one through

A-1589-24 5 five relate to the October 23 burglary and charge third-degree conspiracy to

commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2; third-degree burglary,

N.J.S.A. 2C:18-2; third-degree theft, N.J.S.A. 2C:20-3(a); fourth-degree

possession of burglary tools, N.J.S.A. 2C:5-5(a)(1); and fourth-degree criminal

mischief, N.J.S.A. 2C:17-3(a)(1); (2) counts six through nine relate to the

October 25 burglaries and charge two counts of third-degree burglary, N.J.S.A.

2C:18-2; fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d); and third-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);

(3) counts ten through twenty relate to the robbery and eluding on October 27

and charge first-degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree eluding,

N.J.S.A. 2C:29-2(b); third-degree receiving stolen property, N.J.S.A. 2C:20-

7(a); fourth-degree obstruction, N.J.S.A. 2C:29-1; third-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(3)(a); fourth-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d); and second-degree aggravated

assault, N.J.S.A. 2C:12-(1)(b)(6).

A-1589-24 6 On December 11, 2024, following oral argument on defendant's motion to

sever, the court granted the motion in part supported by an oral opinion. The

court was "satisfied that . . . defendant . . . raised some serious concerns that

require severance as to the burglaries from the events of October 27[] which are

the robbery of the gas station attendant and the eluding." The court concluded:

the only common thread is the unlawful taking of property. In the [c]ourt's view, there is a serious risk that this will be presented or perceived, even if that is not the overt presentation . . . of the prosecution, that this is a crime spree perpetrated by one person and an unknown individual or individuals.

[T]his creates a risk that the prejudice will outweigh the probative value of the linkage of these events. And . . . there is a risk that . . . defendant would be simply seen as a bad guy by the jury. And that is inappropriate under both the court rules and the case law.

The court was "satisfied that the two burglaries [on October 23 and 25

could] be linked on one indictment. They [were] basically a day apart. They

involve forced entry into a commercial premises . . . [and] the taking of property

from that premises." The court found "under [N.J.R.E.] 404[(b),] that elements

of what is sometimes known as the mimic rule are met here. In particular[]

intent, absence of mistake[,] and common scheme o[r] plan" and the October 23

and 25 charges "should be tried together."

A-1589-24 7 On December 19, the court entered a conforming order. 1 On January 31,

2025, we granted the State's motion for leave to appeal.

II.

On appeal, the State raises the following point for our consideration.

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING SEVERANCE.

On cross-appeal, defendant raises the following point for consideration.

THE TRIAL COURT'S DENIAL OF SEVERANCE OF THE OCTOBER 23 AND 25 BURGLARIES CONSITUTED ERROR BECAUSE THE SECOND BURGLARY OFFERS NO PROBABTIVE VALUE IN IDENTIFYING THE PERPETRATOR FROM THE OBSCURED SURVEILLANCE FOOTAGE OF THE FIRST BURGLARY.

We are satisfied the court correctly denied defendant's motion to sever the

October 23 and 25 charges and ordered that those charges be tried together. We

do not find any basis to conclude the court misapplied its discretion by severing

the October 27 charges for a separate trial. Nevertheless, we conclude the State

should be permitted to introduce a "sanitized" version of the events of October

1 The order incorrectly refers to severance of counts eleven through nineteen instead of counts ten through twenty. It is clear the court intended to sever counts ten through twenty from counts one through nine. A-1589-24 8 27, to establish defendant's identity in connection with the October 23 and 25

burglaries.

"The decision whether to grant severance rests within the trial court's

sound discretion and is entitled to great deference on appeal." State v. Brown,

118 N.J. 595, 603 (1990) (citing State v. Laws, 50 N.J. 159, 175 (1967)). We

defer to the trial court's decision on a severance motion unless it constitutes an

abuse of discretion. State v. Weaver, 219 N.J. 131, 149 (2014) (citing State v.

Sanchez, 143 N.J. 273, 283 (1996)).

Rule 3:7-6 permits the State to charge multiple offenses in a single

indictment "if the offenses charged are of the same or similar character or are

based on the same act or transaction or on [two] or more acts or transactions

connected together." "Although joinder is favored, economy and efficiency

interests do not override a defendant's right to a fair trial." State v. Sterling, 215

N.J. 65, 72 (2013).

Rule 3:15-2(b) provides:

[i]f for any . . . reason it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment . . . the court may order . . . separate trials of counts . . . or direct other appropriate relief.

A-1589-24 9 "Charges need not be identical to qualify as 'similar' for purposes of

joinder under [Rule] 3:7-6." Sterling, 215 N.J. at 91. Rather, all that is required

is "some connection between separate counts rendering the evidence probative

of a material issue in another charge." Ibid. "The test is whether the evidence

from one offense would have been admissible N.J.R.E. 404(b) evidence in the

trial of the other offense[.] . . ." Id. at 98. "If the evidence would be admissible

at both trials, then the trial court may consolidate the charges because 'a

defendant will not suffer any more prejudice in a joint trial than he would in

separate trials.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting

State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)).

N.J.R.E. 404(b)(1) to (2) provides, in pertinent part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition.

This 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.

To be admissible:

1. The evidence of the other crime must be admissible as relevant to a material issue;

A-1589-24 10 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.

[State v. Cofield, 127 N.J. 328, 338 (1992) (footnote and citation omitted).]

"The first prong requires that 'the evidence of the prior bad act, crime, or

wrong . . . be relevant to a material issue that is genuinely disputed.'" State v.

Willis, 225 N.J. 85, 98 (2016) (quoting State v. Covell, 157 N.J. 554, 564-65

(1999)). Stated differently, "[t]o avoid prejudicial joinder, the court must

conclude . . . 'the evidence of other crimes or bad acts [is] relevant to prove a

fact genuinely in dispute and the evidence is necessary as proof of the disputed

issue.'" State v. Smith, 471 N.J. Super. 548, 567 (App. Div. 2022) (second

alteration in original) (quoting Sterling, 215 N.J. at 73).

"[E]vidence 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. For example, we

previously upheld the admission of evidence from a prior robbery to prove

identity in a murder case because the defendant in both crimes used a distinctive

A-1589-24 11 fake mustache as part of his disguise. State v. Porambo, 226 N.J. Super. 416,

423-24 (App. Div. 1988). Similarly, in State v. Sempsey, we upheld admission

of evidence from other assaults to prove identity where the assailant in each

incident used a distinctive disguise and employed the same unusual method of

attack. 141 N.J. Super. 317, 323-24 (App. Div. 1976).

The second and third prongs of the Cofield test are self-explanatory. The

fourth prong of the Cofield test "is generally the most difficult part of the test[,]"

and requires careful consideration. State v. Barden, 195 N.J. 375, 389 (2008).

That prong "requires an inquiry distinct from the familiar balancing required

under N.J.R.E. 403: the trial court must determine only whether the probative

value of such evidence is outweighed by its potential for undue prejudice, not

whether it is substantially outweighed by that potential." State v. Green, 236

N.J. 71, 83-84 (internal citation and emphasis omitted). In performing that

analysis, a court must consider whether the other-crimes evidence is necessary

to prove the fact in dispute or whether other, less prejudicial evidence could be

used to prove the same fact. Barden, 195 N.J. at 389 (citing State v. Jenkins,

178 N.J. 347, 365 (2004)). "All four of these factors must support the admission

of the evidence in question." State v. J.M., Jr., 438 N.J. Super. 215, 221 (App.

Div. 2014) (citing State v. P.S., 202 N.J. 232, 255 (2010)).

A-1589-24 12 We are persuaded prong one of the Cofield test is satisfied here. Evidence

of the October 25 burglaries is relevant and material to the identification of

defendant as the perpetrator of the October 23 burglary. The surveillance videos

of the burglaries show the perpetrator's distinctive tattoos on his face and hands.

During the October 23 burglary, however, the perpetrator's face was partially

obscured by a facial covering. During the October 25 burglaries, the

perpetrator's face was fully exposed, and he looked directly into the camera

providing a clear image of his face and facial tattoos. In addition, the perpetrator

was wearing a similar light-colored hooded sweatshirt and chains during both

Evidence of the October 27 robbery and eluding is also relevant and

material to prove defendant's identity as the person who committed the October

23 and 25 burglaries. Defendant was driving the same GMC Terrain on October

27 that he drove to the mall on October 25, and he was arrested at the scene of

the October 27 accident in that vehicle. His identity as the driver of the GMC

Terrain on October 27 is highly probative evidence to demonstrate defendant's

identity as the perpetrator of the October 25 burglaries and, in turn, that he was

also the perpetrator of the October 23 burglary. Defendant was also wearing

chains when he was arrested on October 27 that were similar to those seen in the

A-1589-24 13 surveillance videos of the October 23 and 25 burglaries. In addition, he was in

possession of black clothing that matched the outfit worn by the unidentified

individual with defendant on October 25.

Prongs two and three of the Cofield test are easily satisfied here. All the

crimes were committed within days of each other and are supported by reliable

evidence.

We do not find any basis to disturb the court's analysis of prong four of

the Cofield test. The October 27 charges include allegations that defendant

caused a motor vehicle accident that injured two police officers and that he

committed a robbery while in possession of a handgun. We are persuaded the

court correctly determined that trying the October 27 charges together with the

burglary charges would create a significant likelihood the jury would convict

defendant of all the crimes charged "because he was a bad person, and not on

the basis of the actual evidence adduced against him." State v. Rose, 206 N.J.

141, 164 (2011). The court properly exercised its discretion to sever counts one

through nine from counts ten through twenty and try counts one through nine in

a single trial.

We are convinced, however, during the trial on counts one through nine,

the State should be permitted to introduce evidence that: (1) on October 27

A-1589-24 14 defendant was driving the same GMC Terrain he was seen driving into the mall

parking lot on October 25; (2) defendant was wearing chains similar to those

seen in the surveillance videos of the burglaries when he was arrested on October

27; and (3) the black clothing was located in the vehicle when defendant was

arrested.

As discussed previously, that evidence is relevant and material to identity

and satisfies prongs one, two, and three of the Cofield test. We are convinced

prong four of the Cofield test is also satisfied if the evidence is introduced

without reference to the charges contained in counts ten through twenty of the

indictment, and subject to an appropriate N.J.R.E. 404(b) limiting instruction

regarding the permitted use of the evidence. Allowing the State to introduce a

sanitized version of the evidence from October 27 will balance the State's right

to present relevant and highly probative evidence of identity against defendant's

right to a fair trial.

Affirmed as modified. Remanded for proceedings in conformity with this

opinion. We do not retain jurisdiction.

A-1589-24 15