On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1545 and 06-06-1701. Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 17, 2010
Before Judges Fisher, Simonelli and Fasciale.
At the conclusion of a jury trial involving charges contained in different indictments, defendant was convicted of two separate groups of offenses that were committed months apart and in different locations -- a December 2005 robbery in Newark and a February 2006 carjacking in East Orange. In appealing his convictions, defendant argues primarily that the judge erred by joining the separate indictments and having one trial. We agree and reverse.
In the first incident, on December 16, 2005, defendant robbed A.R. in her Newark office. Defendant walked into A.R.'s office with a black handgun, wore a stocking or mask over his face, demanded her car keys, and took her purse. Defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
In the second incident, on February 11, 2006, defendant observed L.H. and L.C. sitting in L.H.'s car in front of a store in East Orange. When L.H. exited the car to enter the store, defendant approached the car, opened the driver's door, showed L.C. a handgun, and asked her to exit. Defendant drove away after L.C. exited the car.
Later that night, East Orange police located the car, conducted surveillance, and observed defendant and his girlfriend get into the car. The police approached the car and attempted to talk to defendant. Defendant attempted to flee, and punched and kicked the officers, but was eventually detained and handcuffed. Defendant's girlfriend consented to a search of an apartment she shared with defendant and the police located A.R.'s belongings in it.
As a result of the February 11 incident, defendant was indicted and charged with first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree resisting arrest, N.J.S.A. 2C:29-2; and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4).
On July 2, 2007, the assistant prosecutor sought a joint trial on both indictments. She argued that "[i]t is in the interest of the State and judicial economy to try these cases together because the proofs, particularly the proofs pertaining to recovery of evidence, the proceeds will be used in both cases." Defendant's attorney countered that it would be "overwhelmingly prejudicial" to try both sets of charges simultaneously. He argued that the two crimes occurred two months apart, at different locations, in dissimilar ways. The judge concluded:
Counsel, I am concerned about this matter. One of these offenses took place in February of 2006. The other offense took place some three months prior to that; that is, December of 2005.
My concern is that these are not alleged to be similar type offenses, as [defense counsel] has pointed out. Clearly what ties these two together is . . . that the proceeds from these events were found at the arrest of the defendant for the carjacking.
. . . I'm concerned about the differences and the only similarity. I'm inclined to grant the motion for joinder, but I would ...