NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0481-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD L. DUNNS, a/k/a HOWARD LAMONT DUNNS, CLARENCE DUNNS, MICHAEL HOARN, ROBERT JONESY, LAMONT NEWPORT and ROBERT JONES,
Defendant-Appellant. ____________________________
Submitted September 25, 2017 – Decided June 29, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-09-2433.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert C. Pierce, Designated Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney for appellant (John J. Lafferty, IV, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Howard L. Dunns appeals his conviction and sentence
for two counts of burglary and one count of kidnapping. Defendant
entered conditional pleas of guilty to the offenses, reserving his
right to challenge the court's denial of his motion to sever four
charges related to a robbery and kidnapping from the remaining
thirty charges in the indictment concerning eight separate
residential burglaries. We reverse the court's order denying
defendant's severance motion, vacate defendant's conviction and
sentence, and remand for further proceedings consistent with this
opinion.
I.
Defendant and his codefendant Fred D. Mosley were charged in
an indictment with thirty-four offenses arising out of eight
residential burglaries and a robbery and kidnapping occurring in
Atlantic County between November 20, 2012, and February 1, 2013.
The thirty-fifth count of the indictment charged co-defendant
Nicole Cumens with third-degree conspiracy to commit burglary and
theft, N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-1 and N.J.S.A. 2C:20-3.
Thirty counts of the indictment charged defendant and Mosley
with offenses arising from eight residential burglaries, including
eight counts of third-degree burglary, N.J.S.A. 2C:18-2, one count
of fourth-degree theft, N.J.S.A. 2C:20-3, five counts of third-
degree theft, N.J.S.A. 2C:20-3, eight counts of fourth-degree
2 A-0481-15T1 criminal mischief, N.J.S.A. 2C:17-3(a)(1), and eight counts of
third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:18-2.
Four counts of the indictment alleged offenses arising out
of a January 25, 2013 kidnapping and robbery at A.B.'s1 residence:
first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count twenty-one);
second-degree robbery, N.J.S.A. 2C:15-1 (count twenty-two);
fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count
twenty-three); and second-degree conspiracy to commit kidnapping
and robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:13-1(b) and N.J.S.A.
2C:15-1 (count twenty-four). Defendants were not charged with
burglary, N.J.S.A. 2C:18-2(a), in connection with the incident at
A.B.'s residence.
Defendant moved to sever counts twenty-one through twenty-
four from the thirty burglary-related charges. The State opposed
the motion and moved to join unindicted burglary and theft charges
that were pending against defendant and Mosley in Gloucester County
with the charges in the indictment or, in the alternative, to
permit the State to introduce evidence at trial concerning the
Gloucester County charges under N.J.R.E. 404(b).
1 We use the victim's initials to protect her privacy.
3 A-0481-15T1 The evidence before the motion court consisted of the grand
jury testimony of New Jersey State Police Detective John Hannigan
explaining the investigation, and generally describing the
burglaries and the robbery and kidnapping. Hannigan testified
that on November 20, 2012, a residential burglary occurred in
Buena Vista. The perpetrator(s) broke through a rear door of the
residence and stole jewelry from the unoccupied home.
On November 21, 2012, another Buena Vista residence was
burglarized. A neighbor saw a grey Chevrolet Suburban pull into
the driveway and two men walk up a handicap ramp to the house.
The perpetrators broke through the rear door of the residence and
stole jewelry.
On January 8 and 9, 2013, burglaries involving broken rear
doors and the theft of valuables occurred at separate Buena Vista
residences. On January 19, 2013, a burglary occurred when a cinder
block was thrown through a rear window and valuables were stolen
from another Buena Vista residence.
On January 25, 2013, eighty-five-year-old A.B. awoke to noise
in the family room of her Buena Vista residence. She confronted
two men, who bound her hands and feet with a telephone cord and
asked her for money. The perpetrators went through the home,
stole jewelry and fled the scene, leaving the bound A.B. behind.
A.B. was found four hours later by her son. The rear exterior
4 A-0481-15T1 door had been kicked in and the police recovered from the door
what they suspected was a footprint from one of the perpetrators.
On January 29 or 30, 2013, a residence in Franklin Township
in Gloucester County was burglarized. A neighbor unsuccessfully
attempted to block a gold Volkswagen Jetta from leaving the scene.
The neighbor gave the vehicle's license plate number to the police.
The Volkswagen Jetta was leased from a Delaware car leasing store
to Mosley's girlfriend, co-defendant Nicole Cumens. The police
determined the grey Chevy Suburban identified by witnesses to the
November 21, 2012 burglary was owned by Cumens.
On February 1, 2013, the New Jersey State Police surveilled
Cumens's Delaware residence and the car leasing store. They were
advised three new burglaries involving kicked-in rear doors were
reported in Buena Vista that day.
A gold Volkswagen bearing the same license plate seen at the
January 29, 2013 burglary arrived at Cumens's residence. Mosley
exited the vehicle and entered Cumens's home. Detectives later
arrested Mosley when he exited the home.
The police later learned a fourth residential burglary took
place on February 1, 2013, in Gloucester County. A surveillance
recording showed defendant and Mosley inside and outside of the
residence during the burglary. Defendant and Mosley were charged
with the burglary in Gloucester County.
5 A-0481-15T1 When Mosley was arrested, the police recovered a phone from
his pocket and two phones from his vehicle. The phones were
unregistered "burner phones." Analysis of one of the phones showed
it was used to make phone calls to the residences immediately
prior to the burglaries and the kidnapping and robbery between
January 19, 2013 and February 1, 2013. Data showed the phone was
used to make numerous calls to the residences on the days the
crimes charged in the indictment were committed.
Data retrieved from the phone found in Mosley's pocket showed
it was used to make multiple calls to the homes burglarized on
November 20 and 21, 2012, just prior to the burglaries. Other
data showed multiple phone calls were made to the homes burglarized
between December 26, 2012 and January 19, 2013, just prior to the
burglaries.
In Mosley's vehicle, the police found ski masks, multiple
pairs of shoes, black gloves, Western Union receipts and the
homeowner's belongings from one of the February 1, 2013 burglaries.
A shoe recovered from the vehicle matched the shoe print found on
the rear door of A.B.'s home. During the investigation, evidence
recovered from a Philadelphia pawn shop showed defendant and Mosley
pawned jewelry stolen during the November 2012 burglaries.
Months after his arrest, Mosley gave a statement describing
the commission of the crimes. He explained that he and defendant
6 A-0481-15T1 obtained "burner phones" which they first used to obtain the phone
numbers of the residences, including A.B.'s home. They called the
residences multiple times to determine if anyone was home. If
their calls were unanswered, they kicked in the rear doors, and
burglarized the homes to steal valuables, primarily targeting
jewelry.
Mosley explained he drove the Volkswagen Jetta on January 25,
2013 when A.B. was robbed and kidnapped. According to Mosley, he,
defendant and a person he identified as T.T.2 drove by A.B.'s
house, made phone calls to the home and received no answer. Mosley
said defendant and T.T. went to the rear of the residence, kicked
in the back door, went inside and made contact with the homeowner.3
Mosley said defendant and T.T. tied up A.B. and took her
belongings.
When defendant was arrested, he was in possession of a cell
phone. Hannigan generally described that the data from defendant's
2 We use initials to protect the privacy of anyone sharing the name of the individual Mosley said committed the crimes. The individual named was never arrested or charged, and there is no other evidence in the record showing the person Mosley named committed any of the offenses. 3 Mosley's statement contradicted the physical evidence recovered at the scene. The shoe print recovered from the rear door matched the tread pattern of a sneaker from Mosley's car, and Mosley admitted the sneaker was his.
7 A-0481-15T1 phone showed text messages between him and Mosley on the dates of,
or just prior to, the January 2013 offenses. In the messages,
defendant and Mosley communicated about when they intended to meet
and whether the other wanted to "work" on particular days.
The judge denied the State's motion for joinder of the
unindicted Gloucester County charges with the Atlantic County
indictment because defendant had not been indicted on the
Gloucester County charges. The judge further determined that
subject to holding a N.J.R.E. 104 hearing, evidence concerning the
Gloucester County burglaries was admissible under N.J.R.E. 404(b)
in the trial of the charges in the indictment.
The court denied defendant's motion to sever counts twenty-
one through twenty-four, which charged offenses arising out of the
robbery and kidnapping of A.B. Relying solely on Hannigan's grand
jury testimony, the court determined the evidence showed the
robbery and kidnapping were committed in a manner so similar to
the commission of the residential burglaries that it established
defendant's identity as a perpetrator. The court concluded that
evidence concerning the robbery and kidnapping was otherwise
admissible under N.J.R.E. 404(b) to prove defendant's identity as
a perpetrator of the burglaries and, as a result, severance of the
four counts was not required.
8 A-0481-15T1 Seven months later, Mosley pleaded guilty to two counts of
burglary and one count of kidnapping pursuant to a plea agreement.
Mosley agreed to testify against defendant.
Defendant subsequently pleaded guilty to three counts of
burglary and one count of kidnapping. The State agreed to
recommend a sentence not to exceed nineteen years subject to the
requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.1. Defendant's plea was conditioned on his right to appeal the
denial of his severance motion.
Defendant was sentenced to an aggregate nineteen-year
custodial term, and ordered to pay $30,803.45 in restitution at
the rate of $100 per month following his release. This appeal
followed.
On appeal, defendant makes the following arguments:
POINT I
THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO SEVER THE KIDNAPPING AND RELATED CHARGES CONTAINED IN COUNTS 21-24 OF THE INDICTMENT FROM THE REMAINING 21 COUNTS THAT DEALT WITH SEVEN OTHER BURGLARIES.[4]
POINT II
THE SENTENCE IMPOSED UPON [DEFENDANT] IS UNLAWFUL BECAUSE THE TRIAL COURT IMPROPERLY ORDERED THE REPAYMENT OF RESTITUTION AND
4 As noted, the indictment actually includes thirty charges related to the eight burglaries, and four charges arising from the robbery and kidnapping at A.B.'s residence.
9 A-0481-15T1 INCLUDED A STATEMENT IN THE JUDGMENT OF CONVICTION THAT THE TRIAL COURT "DOES NOT CONSENT TO A REDUCTION OF THE PRIMARY PAROLE ELIGIBILITY DATE PURSUANT TO N.J.S.A. 30:4- 123.67."
II.
We first address defendant's contention that the court erred
by denying his motion to sever counts twenty-one through twenty-
four from the remaining counts, which allege offenses arising out
of the eight residential burglaries. Defendant argues the evidence
before the motion court did not establish the commission of
"signature crimes" and therefore the court erred by finding
evidence showing the commission of the robbery and kidnapping was
admissible under N.J.R.E. 404(b) to prove defendant's identity as
a perpetrator of the other offenses charged in the indictment.
The State contends severance was not required because evidence
showing defendant committed the robbery and kidnapping was
otherwise admissible to prove defendant's identity as a
perpetrator of the thirty other offenses charged in the indictment.
Where multiple criminal charges in an indictment are "based
on the same conduct or aris[e] from the same episode," mandatory
joinder of the charges is required. R. 3:15-1(b). Relief from
mandatory joinder of charges may be granted in the trial court's
discretion "if a party is prejudiced by their joinder." State v.
Oliver, 133 N.J. 141, 150 (1993).
10 A-0481-15T1 In our review of a trial court's decision permitting two or
more offenses to be tried simultaneously, we "assess whether
prejudice is present, and [the court's] judgment is reviewed for
an abuse of discretion." State v. Sterling, 215 N.J. 65, 73
(2013); accord State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
"The 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.'" Ibid. (alteration in original)
(quoting Chenique-Puey, 145 N.J. at 341).
Here, defendant's severance motion required that the court
determine whether evidence concerning the robbery and kidnapping
related charges was admissible under N.J.R.E. 404(b) in the trial
of the indictment's thirty other charges. See Sterling, 215 N.J.
at 73. 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).
Because of the dangers that admission of other crimes evidence
presents, "evidence proffered under Rule 404(b) 'must pass [a]
rigorous test.'" State v. Garrison, 228 N.J. 182, 194 (2017)
(quoting State v. Kemp, 195 N.J. 136, 159 (2008)). In State v.
Cofield, 127 N.J. 328, 338 (1992), our Supreme Court established
11 A-0481-15T1 a four-part test for determining the admissibility of other-crime
evidence:
1. The evidence of the other crime must be admissible as relevant to a material issue;
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.
[Ibid. (quoting Cofield, 127 N.J. at 338).]
Where, as here, the court did not analyze the evidence under the
Cofield test, we review de novo the determination that evidence
is admissible under N.J.R.E. 404(b). Garrison, 228 N.J. at 194;
accord State v. Darby, 174 N.J. 509, 518 (2002).
In making its determination under N.J.R.E. 404(b), the court
relied on Hannigan's grand jury testimony concerning the robbery
and kidnapping and the other crimes charged in the indictment.
The court found the evidence was admissible under N.J.R.E. 404(b)
to prove defendant's identity as a perpetrator of the thirty
burglary-related offenses. We therefore consider whether the
evidence was admissible under the Cofield test to prove defendant's
identity as a perpetrator of the thirty burglary-related charges
in the indictment. See Sterling, 215 N.J. at 73.
12 A-0481-15T1 Under the first prong, evidence is relevant if it makes an
inference more probable and is related to a material issue in
dispute. State v. Rose, 206 N.J. 141, 160 (2011). Here,
defendant's identity as a perpetrator of the offenses charged in
the indictment was a material issue. State v. Henderson, 433 N.J.
Super 94, 108 (App. Div. 2013) (noting the state "bears the burden
of proving identity").
The State argues, and the court appeared to find, the evidence
concerning the robbery and kidnapping proved defendant's identity
as a perpetrator of the burglary-related crimes because all of the
crimes charged in the indictment were signature crimes. There is
a stringent standard for admitting other-crimes evidence to prove
identity where, as here, "the State attempts to link a particular
defendant to a crime on the basis of modus operandi, or a signature
way of committing the crime." Sterling, 215 N.J. at 93; see also
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment
14 on N.J.R.E. 404(b) (2017). A more stringent standard is
required "[b]ecause of the great hazard of prejudice," when other
crime evidence is presented, "particularly when the venture is to
prove identity . . . ." State v. Reldan, 185 N.J. Super. 494, 502
(App. Div. 1982).
To establish the commission of signature crimes, the evidence
must show "the prior criminal activity with which defendant is
13 A-0481-15T1 identified must be so nearly identical in method as to earmark the
crime as defendant's handiwork." State v. Fortin, 162 N.J. 517,
532 (2000) (quoting Reldan, 185 N.J. Super. at 502). The conduct
must be unusual and distinctive, like a signature, and there must
be proof of sufficient facts in both crimes to establish an unusual
pattern. Ibid.; see also State v. Inman, 140 N.J. Super. 510, 516
(App. Div. 1976) (finding admissibility of signature crime
evidence is limited to where the crimes have "been committed by
some novel or extraordinary means or in a peculiar or unusual
manner").
Other-crime evidence, however, is inadmissible to establish
identity where the crimes are not sufficiently similar. Sterling,
215 N.J. at 97. In Sterling, the Court determined that evidence
showing the perpetrators of separate sexual assaults used a condom,
made racial comments and cut the victims' underwear was not
sufficiently "unique, or even unusual," to "rise to the level of
signature elements of a crime." Id. at 97-98. Similarly, in
Reldan, 185 N.J. Super. at 503, we determined that evidence showing
the defendant committed prior offenses by trying to choke his
victims was inadmissible as signature crime evidence to prove his
identity as the perpetrator of two murders where the victims were
strangled with a pantyhose ligature.
14 A-0481-15T1 Here, the evidence showed the robbery and kidnapping and the
burglary-related charges shared some common elements: the
perpetrators called the home phone numbers before forcing entry
through the rear doors, and then stole items. However, we find
nothing in those common elements that is "unusual and distinctive
so as to be like a signature," Sterling, 215 N.J. at 95. In
addition, there were dissimilarities in the commission of the
offenses. For example, the evidence showed the perpetrators did
not use the same means to force open the rear doors in certain
instances, and there was no evidence showing the method used to
force the doors open in others.5
We are therefore not convinced the robbery and kidnapping and
the burglaries charged in the indictment were committed in a
unique, distinctive and identical manner sufficient to satisfy the
"high burden that . . . [is] required when other-crimes evidence
is admitted to prove identity through the use of signature crime
analysis." Id. at 94-95. The evidence did not satisfy the
heightened standard to establish the commission of signature
crimes to prove defendant's identity. See id. at 97-98.
5 The evidence showed that some of the doors were kicked in, one door was opened by throwing an object threw a window, and there was no evidence presented showing the method used to open the doors of some of the residences.
15 A-0481-15T1 The only other evidence establishing defendant's identity as
a perpetrator of the crimes charged in the indictment was
Hannigan's grand jury testimony about Mosley's statements to the
police. As noted, Mosley told the police he and defendant
committed the burglaries, and he was with defendant when defendant
and T.T. broke into A.B.'s home and committed the robbery and
kidnapping. The statements attributed to Mosley support a finding
of admissibility under the under the first prong of the Cofield
test. It is "relevant to a material issue genuinely in dispute"
- defendant's identity. State v. Gillispie, 208 N.J. 59, 86
(2011).
The second Cofield prong, requiring evidence concerning the
robbery and kidnapping be "similar in kind and close in time to
the" other offenses charged, is applicable where identity is at
issue. State v. Carswell, 303 N.J. Super. 462, 470-71 (App. Div.
1997). However, "[t]emporality and similarity of conduct is not
always applicable, and thus not required in all cases." Rose, 206
N.J. at 160; see also State v. Williams, 190 N.J. 114, 131 (2007)
(finding the second prong's "usefulness as a requirement is limited
to cases that replicate the circumstances in Cofield"). We do not
find the second Cofield prong applicable here because, as noted,
there is insufficient evidence showing a similarity in the
commission of the robbery and kidnapping and the other offenses
16 A-0481-15T1 to establish defendant's identity as a perpetrator of the other
offenses.
The third prong requires that the prosecution establish by
"'clear and convincing' evidence" that the other crimes or acts
occurred. Rose, 206 N.J. at 160 (quoting Cofield, 127 N.J. at
338). To satisfy this prong, the State was required to demonstrate
by clear and convincing evidence defendant committed the robbery
and kidnapping. Ibid. The trial court must ordinarily conduct a
N.J.R.E. 104 hearing to "hear the specific content of the other-
crime testimony[,] . . . assess its relevance to an issue in
dispute and its necessity to the proof of that issue" and
"determine whether it finds proof of the other crime to be clear
and convincing." State v. Hernandez, 170 N.J. 106, 127 (2001).
Because the court did not hold a N.J.R.E. 104 hearing, the
evidence showing defendant committed the robbery and kidnapping
was limited to Hannigan's testimony about Mosley's statements to
the police. Although the testimony of an uncorroborated accomplice
may constitute clear and convincing evidence of a defendant's
commission of another crime, id. at 125-26, hearsay does not
support a finding the State proved a defendant's commission of
another crime by clear and convincing evidence, State v. Sheppard,
437 N.J. Super. 171, 201 (App. Div. 2014). Moreover, Mosley's
statements to the police do not constitute clear and convincing
17 A-0481-15T1 evidence that defendant committed the robbery and kidnapping
because the motion court did not assess the statements in a
N.J.R.E. 104 hearing and the statements were unchallenged by cross-
examination. See Hernandez, 170 N.J. at 127 (finding a N.J.R.E.
104 hearing to assess the testimony concerning defendant's
commission of an other-crime was unnecessary because the court was
presented with testimony concerning the commission of the crime
in a separate proceeding where the witness was subject to "tough
cross-examination"). Thus, the motion court lacked, and this
court lacks, any evidentiary basis supporting a finding the State
satisfied its burden under Cofield's third prong. See State v.
Carlucci, 217 N.J. 129, 143 (2014) (finding police officer's
testimony that defendant admitted prior crime was not clear and
convincing evidence of the commission of the crime under Cofield).
Cofield's fourth prong "recognizes that the 'inflammatory
characteristic of other-crime evidence . . . mandates a careful
and pragmatic evaluation by trial courts, based on the specific
context in which the evidence is offered, to determine whether the
probative worth of the evidence outweighs its potential for undue
prejudice.'" State v. Willis, 225 N.J. 85, 99 (2016) (alteration
in original) (quoting State v. Stevens, 115 N.J. 302, 303 (1989));
accord Rose, 206 N.J. at 161.
18 A-0481-15T1 "'[T]he potential for undue prejudice need only outweigh
probative value to warrant exclusion' of other-crime evidence."
Willis, 225 N.J. at 99-100 (quoting State v. Reddish, 181 N.J.
553, 608 (2004)). "[I]f other less prejudicial evidence may be
presented to establish the same issue, the balance in the weighing
process will tip in favor of exclusion." Rose, 206 N.J. at 161
(quoting State v. Barden, 195 N.J. 375, 392 (2008)). "Thus, courts
have interpreted N.J.R.E. 404(b) 'as a rule of exclusion rather
than a rule of inclusion.'" Willis, 225 N.J. at 100 (quoting
State v. Marrero, 148 N.J. 469, 483 (1997)).
The motion court failed to conduct the "careful and pragmatic
evaluation" of the evidence required to determine if the probative
value of the evidence concerning the robbery and kidnapping was
outweighed by its potential prejudice in proving defendant's
identity as a perpetrator of the burglaries. See Willis, 225 N.J.
at 99. The record does not reveal any physical evidence connecting
defendant's alleged commission of the robbery and kidnapping to
the burglary-related offenses or showing he committed those
offenses.6 Again, defendant's alleged commission of the robbery
6 The State argues that defendant was found in possession of "one of the burner phones" used to call the various homes during the commission of the offenses. In support of the argument, the State cites to Hannigan's grand jury testimony. Hannigan, however, did not testify there was any data retrieved from defendant's phone
19 A-0481-15T1 and kidnapping was shown solely through Hannigan's testimony about
Mosley's statements.
Mosley's statement concerning defendant's alleged commission
of the robbery and kidnapping has no probative value in
establishing defendant's identity as the perpetrator of the other
crimes charged in the indictment. That is, if the burglary-related
charges were tried separately, Mosley's testimony defendant
committed the robbery and kidnapping would not establish
defendant's identity as the perpetrator of the burglaries. The
State does not argue otherwise. The State contends only that
evidence concerning the robbery and kidnapping is probative of
defendant's identity because the crimes charged in the indictment
are signature crimes. As noted, we find no support in the record
for that position.
In addition to Hannigan's testimony about Mosley's
statements, Hannigan explained the phones found in Mosley's
possession were used to call all of the residences prior to the
commission of the crimes charged in the indictment. It might be
argued Mosley's statement that defendant was a perpetrator of all
showing it was used to call A.B.'s residence or any of the residences where the burglaries were committed. Hannigan testified only that the phones recovered from Mosley were used to call the various residences.
20 A-0481-15T1 of the offenses, and the data retrieved from the phones, establish
defendant's identity by connecting him to the commission of all
of the crimes charged in the indictment.
Even if viewed in that manner, however, evidence concerning
the robbery and kidnapping is only minimally probative of
defendant's identity as a perpetrator of the burglaries because
it is duplicative and cumulative. State v. Weaver, 219 N.J. 131,
151 (2014) (noting that other crimes evidence is minimally
probative where it constitutes "needless presentation of
cumulative evidence"). That is, Mosley's statement that defendant
committed the robbery and kidnapping adds little to his statement
directly implicating and identifying defendant as a perpetrator
of the thirty burglary-related offenses charged in the indictment.
Thus, there is less prejudicial evidence of defendant's identity
as a perpetrator of the burglary related offenses than Mosley's
statement concerning defendant's commission of the robbery and
kidnapping. See State v. Jenkins, 178 N.J. Super. 347, 365 (2004)
(citation omitted) ("[I]n deciding whether prejudice outweighs
probative value, 'a court must consider the availability of other
evidence that can be used to prove the same point.'").
Under the fourth prong of the Cofield standard, we weigh the
probative value of the evidence concerning the robbery and
kidnapping against the possible prejudice defendant would suffer
21 A-0481-15T1 if the evidence was admitted to prove the thirty burglary-related
offenses. Willis, 225 N.J. 85, 99. The grand jury testimony
showed that during the robbery and kidnapping eighty-five-year-
old A.B. "was manhandled and thrown onto [a] chair," her hands and
feet were bound with a phone cord, and she was tied to the leg of
a chair. A.B. was placed on her knees with her hands pulled behind
her back, with her chest and stomach face down over the front of
the chair. She was left in that position during the short time
the perpetrators were in her home and for the four hours that
passed before her son found her.
The evidence showing the manner in which the robbery and
kidnapping of A.B. was committed demonstrates a propensity to use
violence and force against a helpless victim that was not relevant
in the eight burglaries. We are convinced the evidence posed an
obvious and compelling potential for substantial and undue
prejudice against defendant on the other thirty charges in the
indictment. The prejudice clearly outweighed the negligible, if
not nonexistent, probative value of the evidence.
We are convinced evidence concerning the robbery and
kidnapping was not admissible under N.J.R.E. 404(b) to prove
defendant's identity as the perpetrator of the thirty burglary-
related charges. The court erred by finding otherwise, and by
denying defendant's severance motion. See Sterling, 215 N.J. at
22 A-0481-15T1 73. We reverse the court's order denying defendant's severance
motion, vacate defendant's conviction and sentence, and remand for
further proceedings consistent with this opinion.
III.
Although our reversal of defendant's conviction renders it
unnecessary to address his remaining arguments, we offer the
following comments in the event defendant is convicted of any of
the offenses after trial or in accordance with a negotiated plea
agreement on remand. Defendant challenged the court's order that
he make restitution in the amount of $30,803.45 at the rate of
$100 per month following his release from incarceration. He
contended the court erred by ordering restitution without
conducting a hearing or making any findings about his ability to
pay. The State agreed, as do we.
A determination that a defendant shall pay restitution
requires, at a minimum, a summary hearing to protect a defendant's
due process rights, State v. Pessolano, 343 N.J. Super. 464, 479
(App. Div. 2001) (citations omitted), unless there is no dispute
as to the issue, State v. Orji, 277 N.J. Super. 582, 589-90 (App.
Div. 1994); see also State v. Jamiolkoski, 272 N.J. Super. 326,
329 (App. Div. 1994) (holding that a hearing other than a summary
proceeding must be conducted when there exists a good faith dispute
regarding a defendant's ability to pay). The judge is required
23 A-0481-15T1 to "explain the reasons underlying the sentence, including the
decision to order restitution, the amount of the restitution, and
its payment terms." State v. Scribner, 298 N.J. Super. 366, 371
(App. Div. 1997).
If on remand the court is required to determine the issue of
restitution, it shall "conduct a hearing at which the parties may
present evidence regarding" the victims' losses and defendant's
ability to pay. State v. Kennedy, 152 N.J. 413, 425 (1998). If
the court sentences defendant to pay restitution, it shall "explain
the reasons underlying its decision, including the amount of
restitution awarded and the terms of payment." Ibid.
Defendant also argued the court erred by stating in the
judgment of conviction that it "does not consent to a reduction
of [defendant's] primary parole eligibility date pursuant to
N.J.S.A. 30:4-123.67." The statute authorizes a defendant to
enter into a written parole contract agreement with the New Jersey
Department of Corrections (NJDOC) stipulating that the defendant's
completion of "individual programs of education, training, or
other activity" will result in a reduction of the defendant's
primary parole eligibility date under N.J.S.A. 30:4-123.52.
N.J.S.A. 30:4-123.67(a); see also Trantino v. N.J. State Parole
Bd., 166 N.J. 113, 208 n.3 (2001) (Baime, J., dissenting).
Defendant claims the sentencing court has no role in the decision
24 A-0481-15T1 allowing entry into a parole agreement and, as a result, the
court's statement in the judgment of conviction was erroneous and
should be deleted.
A sentencing court may either provide or withhold consent to
a reduction in a defendant's primary parole eligibility date.
N.J.S.A. 30:4-123.67(a), which allows a defendant's entry into a
parole agreement reducing the primary parole eligibility date, is
qualified by N.J.S.A. 30:4-123.52. The statute requires the
sentencing court's consent to a reduction in a defendant's primary
parole eligibility date. N.J.S.A. 30:4-123.52(b).
Thus, a sentencing court may include in a judgment of
conviction its lack of consent to any reduction of a defendant's
primary parole eligibility date that may be sought by entering
into a parole contract under N.J.S.A. 30:4:123-67(a). A sentencing
court's consent to a reduction of defendant's primary parole
eligibility date is required under N.J.S.A. 30:3-123.52(b).
Reversed and remanded for further proceedings in accordance
with this decision. We do not retain jurisdiction.
25 A-0481-15T1