On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 04-08-1928.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2006
Before Judges Graves and Lihotz.
Defendant Stefon Parson, along with his brother, Stevie Parson, and two other individuals were charged in a three-count indictment with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft of movable property (cellular telephones), N.J.S.A. 2C:20-3(a) (count two); and third-degree conspiracy to commit the crime of burglary and/or theft, N.J.S.A. 2C:5-2 and/or N.J.S.A. 2C:18-2 and/or N.J.S.A. 2C:20-3 (count three). On count one, defendant was found not guilty of burglary but convicted of the lesser included disorderly persons offense of criminal trespass; on count two, defendant was convicted of fourth-degree theft of cellular telephones having a value between $200 and $500; and on count three, he was found not guilty of conspiracy. Defendant was sentenced to a one-year term of probation, and, as a condition of probation, he was required to pay fines, penalties, and assessments.
On appeal, defendant presents the following issues:
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED THE CO-DEFENDANTS TO INTRODUCE EVIDENCE THAT WAS HELD INADMISSIBLE AGAINST THE DEFENDANT IN A PRIOR MIRANDA HEARING, WHEN THE COURT DENIED DEFENDANTS' MOTIONS FOR SEVERANCE TO AVOID PREJUDICE RESULTING FROM A JOINT TRIAL.
THE VERDICTS OF GUILTY AND TRESPASS AND THEFT OF PROPERTY VALUED OVER $500 WERE AGAINST THE WEIGHT OF THE EVIDENCE (Not raised below.).
Based on our review of the record and applicable law, we agree the trial court abused its discretion when it denied defendant's motion for severance. We therefore reverse defendant's judgment of conviction and remand the matter for a new trial.
Although the precise sequence of events is not entirely clear from the record before us, it is reasonably clear defense counsel could not have been aware of the need for a Miranda*fn1 hearing until the State provided supplemental discovery shortly before trial. Indeed, on the day of trial, it was still not clear a Miranda hearing was required because the assistant prosecutor informed the court she was "not completely sure" the State was going to utilize the statement defendant allegedly made to the police at the time of his arrest. Thus, the evidentiary hearing, which resulted in the suppression of defendant's oral statement, did not take place until after the jury was selected, and the assistant prosecutor advised the court the State would seek to admit defendant's statement into evidence.
The sole witness to testify at the suppression hearing was Patrolman Edward Ungrady, a member of the Marlboro Township Police Department. His testimony included the following:
Q: As you were processing Stefon, what if anything did you say to him?
A: I said you're being placed under arrest.
Q: Okay. And did Stefon say anything to you?
Q: And what did you say to Stefon?
A: The cell phones that are in your car.
Q: And did Stefon say anything back to you?
A: Yeah, he seemed agitated and said, "I took those phones because they owed me money."
After the court suppressed defendant's oral statement, Mr. Coghlan, the attorney for co-defendant Kunta Goodridge, advised the court severance was needed because he intended ...