On appeal from Superior Court of New Jersey, Law Division, Passaic County, 99-11-1075-I.
Before Judges Coburn, Collester and Alley.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2002
This case arose from two Wayne Township residential burglaries, each accompanied by theft. The homes were three blocks apart, the time and method of illegal entry was the same, and the second incident occurred four days after the first. No one observed the first incident, and defendant's connection to it was established by evidence discovered during the second incident: the police, called while the second burglary was in progress, chased defendant and found hidden under his body items stolen in the first burglary.
A Passaic County grand jury returned an indictment charging defendant in four counts; the first two counts covered the first incident, while the latter counts covered the second incident. Counts one and three alleged third-degree burglary, N.J.S.A. 2C:18-2. Count two alleged third-degree theft of movable property, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:20-2(b)(2)(a), and count four alleged fourth-degree theft of movable property, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:20-2(b)(3). Before trial, defendant moved for a severance, contending that the two incidents should be tried separately. The judge denied the motion, and a jury found defendant guilty on all counts. After granting the State's request for an extended term because defendant is a persistent offender, N.J.S.A. 2C:44-3a, the judge imposed the following consecutive prison sentences: ten years, with five years of parole ineligibility, on count three; and five years, with two and one-half years of parole ineligibility, on count one. The judge imposed concurrent sentences on the remaining counts: five years on count two, and eighteen months on count four. Thus, the aggregate sentence was fifteen years of imprisonment, with seven and one-half years of parole ineligibility.
The primary issue on appeal is whether the judge erred in denying the defendant's severance motion. Since all the evidence from both incidents would have been admissible in separate trials, and since defendant failed in his pretrial motions to demonstrate that he had important testimony to give as to one incident and a strong need to refrain from testifying as to the other, we sustain the ruling as well within the judge's discretion. Because we also reject the other points raised by defendant, we affirm the judgment.
Scott Ressler's home was burglarized on the evening of July 23, 1999. The first floor bathroom window had been broken, and a rock and glass lay on the floor. Among the missing items were over $5,000 worth of jewelry and Ressler's social security card, two credit cards, boating safety certificate, and library card.
Four days later, on the evening of July 27, 1999, the home of Eswar and Jyotsna Phadia was burglarized while they were sleeping. They lived three blocks from Ressler. A neighbor heard glass breaking, saw someone on the Phadia's back porch, and summoned the police, who arrived within minutes. Two officers, Worell and McDermott, positioned themselves at opposite corners of the home. Worell heard a voice from inside the house. A window opened on the side of the house, and a man leaped out and began running toward McDermott, who, with the aid of a flashlight, was able to see the man's face. As the man ran away, the police gave chase, but were unable to keep up. The man ran past another neighbor, Anthony Giampapa. The area was well lit, and Giampapa got a good look at the man's face. The police called the Sheriff's K-9 unit, which arrived about twenty minutes later. Within about ten minutes, one of the K-9 dogs located defendant, who was sweating profusely and hiding in a fetal position under a nearby bush. Giampapa was brought to the scene, where he positively identified defendant as the man who had just run past him. Later that evening at police headquarters, McDermott, who had been hurt in the chase, positively identified defendant as the man who had run toward him after jumping out of the Phadia's window. Entry into the Phadia's home had been achieved by breaking the first floor bathroom window with a rock, which was found on the floor. Money was stolen, $350 from Jyotsna's pocketbook, and $2,000 in new $100 bills from an envelope in an upstairs dresser. When the police arrested defendant, they found $2,354 in his wallet, $2,000 of which, separated from the other currency, was in new $100 bills. Under his body they found a Social Security card, two credit cards, a boating safety certificate, and a library card - all in the name of Scott Ressler.
Defendant testified as follows. He was not in Wayne on July 23, 1999; however, on the next day, while he and a friend were walking through a nearby strip mall, he found Ressler's identification documents on the ground in a plastic bag. He put them in his wallet, planning to use them as false identification for himself. On July 27, 1999, he left his girlfriend's home in Wayne around 11:00 p.m. As he walked toward the bus stop, he saw a police car moving slowing and scanning the area with a spotlight. He had some marijuana in his sock and Ressler's identification papers in his wallet, along with $2,000 in new $100 bills. He also had $396 in his pocket. His explanation for the money was that he did not have a bank account and liked to carry large sums of money. He had earned the money gambling and working. He said that the $396 was his spending money, and the $2,000 was his savings, the new bills resulting from an exchange at a bank of old money in small denominations for the new $100 bills. When he realized that the police were searching for someone, he became concerned that he would be stopped and found in possession of the marijuana and the Ressler documents. He discarded the marijuana, ran, and hid under a bush, placing the Ressler documents under his body in the hope the police would not find them. Shortly thereafter he was arrested, and the Ressler documents were picked up by the police.
The severance issue first arose at a pretrial hearing on March 13, 2000, at which time defendant was represented by counsel assigned by the Public Defender. However, before discussing severance, defendant moved successfully for permission to represent himself, and the judge, with defendant's consent, appointed his assigned counsel to assist him throughout the proceedings. Those rulings are not questioned on appeal. Defendant's counsel then moved for severance on the ground that the incidents were separate. The prosecutor resisted, arguing that the evidence from each date would be admissible in separate trials. At that time, the arguments focused on whether the evidence from the second burglary would be admissible under N.J.R.E. 404(b) with respect to identifying defendant as the person who committed the first burglary. In a March 23, 2000, written opinion, the motion judge, who was not the trial judge, ruled as follows:
Evidence of defendant's possession of the credit cards on July 27, 1999, after allegedly fleeing after committing the burglary and theft is admissible to show he was the person who committed the July 23, 1000 burglary and theft. It is admissible pursuant to [N.J.R.E.] 404(b) to show identity. See State v. Loftin, 146 N.J. 295, 321, 394 (1996). Since it would be admissible in a trial involving both incidents, there is no additional prejudice to defendant because it would be ...