On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. 03-02-00119-I.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Lefelt and Fuentes.
Defendant, Robert Silva, was indicted by the Somerset County Grand Jury on second-degree burglary, N.J.S.A. 2C:18-2; third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and fourth-degree contempt, N.J.S.A. 2C:29-9b. On the day of trial, but before a jury was selected, defendant successfully moved to sever the contempt charge from the burglary and assault charges.
In granting defendant's motion, the court ordered the State to try the burglary and aggravated assault charges first, followed thereafter by the contempt charge. In this first trial, the court precluded the State from introducing any evidence of the existence of a domestic violence temporary restraining order (TRO) issued against defendant. The jury would become aware of the TRO in the second phase of the trial involving the charge of contempt.
The State agreed that a bifurcated proceeding, separating the burglary and aggravated assault charges from the contempt charge, was necessary to avoid the potential for prejudice. It objected, however, to the court's order precluding the introduction of the TRO into evidence in the burglary trial. The State argued that, without evidence of the existence of the restraining order, it would be unable to prove an indispensable element of the crime of burglary, to wit, that defendant was not legally licensed or privileged to enter his former residence. The court overruled the State's objection.
We granted the State's motion for leave to appeal and stayed the trial court proceeding pending our review of this matter. After considering the facts and applicable law, we agree with the State's position and reverse. For purposes of our discussion, we will accept the State's proffer as to what the evidence will show at trial.
Defendant, his longtime paramour Shirley,*fn1 and her two children lived together for several years in defendant's townhouse in the Borough of Raritan. On May 16, 2002, Shirley obtained a domestic violence TRO, alleging, as a predicate offense, that defendant harassed her at her place of employment. Among the relief granted in the TRO, Shirley was given exclusive possession of the Raritan townhouse, and defendant was restrained from having any contact with Shirley.
The State alleges that, two days after the issuance of the TRO, defendant entered the townhouse, argued with Shirley and punched her once in the face, causing injuries that required extensive medical treatment. Defendant, through counsel, has proffered an alibi defense, denying that he was ever at the townhouse anytime after the issuance of the TRO.
We begin our analysis by reaffirming the applicable standard of review. The trial court is vested with the discretion to sever any count in an indictment, if joinder would unfairly prejudice a defendant or the State. R. 3:15-2(b). We will thus reverse a trial court's grant of a motion to sever only if we are satisfied that it constitutes a mistaken exercise of that discretion. State v. Briley, 53 N.J. 498, 503 (1969).
In State v. Chenique-Puey, 145 N.J. 334 (1996), the Supreme Court considered whether it was proper to try terroristic threats, N.J.S.A. 2C:12-3b, jointly with fourth-degree contempt of a domestic violence restraining order, N.J.S.A. 2C:25-29b(1). The facts in Chenique-Puey are similar to the facts here. An unmarried couple with a history of cohabitation eventually separated due to "incessant arguing and fighting." Id. at 337. Sometime thereafter, the woman in that ...