                        NOT FOR PUBLICATION WITHOUT THE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-0041-17T2
STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

LETICIA GARDNER and
YVONNE STRICKLAND1,

     Defendants-Respondents.
_____________________________

              Argued February 15, 2018 – Decided July 20, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              15-12-2841.

              Tiffany M. Russo, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for appellant (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney;
              Tiffany M. Russo, of counsel and on the
              brief).

              David J. Bruno and Robert A. Bianchi, argued
              the cause for respondent Leticia Gardner (The
              Bianchi Law Group, LLC, and Einhorn, Harris,
              Ascher, Barbarito & Frost, PC, attorneys;



1
    Respondent Yvonne Strickland has not filed a brief.
             David J. Bruno and Matheu D. Nunn, of counsel
             and on the brief).

PER CURIAM

     On December 3, 2015, defendants Leticia Gardner and Yvonne

Strickland were charged in an Essex County indictment with second-

degree    conspiracy,     N.J.S.A.       2C:5-2;   second-degree    theft        by

deception, N.J.S.A. 2C:20-4(a); and fourth-degree falsifying or

tampering    with   records,   N.J.S.A.      2C:21-4(a).      The   indictment

stemmed from allegations that, in 2011, defendants submitted false

closing     documents    to   the    Department    of   Housing     and     Urban

Development (HUD) in connection with Gardner's purchase of a house

in Avenel.    By leave granted, the State appeals from a May 1, 2017

Law Division order granting Gardner's motion to sever defendants

for purposes of trial and a July 20, 2017 order denying the State's

motion for reconsideration.         We affirm.

     According to the State's theory of the case, Gardner was

required to sell her previous residence in East Orange before

closing on the loan to purchase the Avenel house.             On October 25,

2011,    Strickland     submitted   an    application   for   HUD   financing,

signed by Gardner, falsely reporting that Gardner had sold her

East Orange home when, in fact, the house was in foreclosure.

During the investigation, Gardner made statements to investigators

in which she referred to Strickland as her "associate" and alleged


                                         2                                A-0041-17T2
that Strickland assisted in preparing the mortgage application.

Strickland allegedly sent the false documents to her "business

partner," Louis Charles, from "her email account on letterhead of

'DCAPS,     LLC,'    which    [was]   a       company   formed   and    owned    by

Strickland."        Charles, a licensed mortgage broker, forwarded the

documents to HUD, and, as a result, Gardner successfully closed

on the Avenel house.

     Prior to indicting defendants, the State charged Charles in

a complaint-warrant with fourth-degree securing the execution of

documents    by     deception,   N.J.S.A.        2C:21-16,    and   third-degree

forgery,    N.J.S.A.     2C:21-1(a)(3).          During   a   proffer    session,

Charles professed innocence and incriminated defendants, claiming

he met Gardner in February 2011 through Strickland, who introduced

her as "one of [her] best friend[s] and business partner." Charles

claimed he agreed to help Gardner complete an application for a

mortgage loan to purchase a new home at Strickland's request.                    He

alleged he did not know the documents he forwarded to the mortgage

lender were false, nor did he have any reason to think they were.

To support his claims, Charles provided incriminating documents,

including a 2009 civil consumer fraud complaint filed by the New

Jersey Attorney General charging Strickland and several others

with mortgage fraud.         After receiving this information, the State

administratively dismissed the criminal complaint against Charles

                                          3                               A-0041-17T2
and pursued the criminal prosecution of Strickland and Gardner,

leading to the return of the joint indictment.

     Strickland moved to sever, arguing that Gardner's statements

to   investigators        implicated    her   and     were   the   "functional

equivalent    of    and    tantamount    to   an    interlocking    confession

prohibited by . . . State v. Young, 46 N.J. 152 (1965) and Bruton

v. United States, 391 U.S. 123 (1968)."             On February 14, 2017, the

motion judge denied severance, concluding that although Gardner's

statements "may create hostility between co-defendants, it [did]

not rise to the level [of] prejudice . . . sufficient to sever a

trial," and "mere antagonism [was] not sufficient grounds for

severance."        Additionally,   the      judge   distinguished    State    v.

Weaver, 219 N.J. 131, 157 (2014), because, unlike the co-defendants

in Weaver who "each named the other as the shooter, the co-

defendants here [had] yet to blame the other for any wrong doing."

The judge acknowledged Strickland's "fear of possible prejudice"

if additional "inculpatory evidence [was] produced," but believed

"carefully worded jury instructions" could properly address her

concerns.

     While Strickland's motion to sever was pending, the State

moved pursuant to N.J.R.E. 404(b) to admit a September 12, 2011

consent judgment Strickland had entered into with the Attorney

General to resolve the 2009 mortgage fraud case against her.                  In

                                        4                              A-0041-17T2
the consent judgment, "without admission of any liability or

wrongdoing of any kind," Strickland agreed to "comply fully with

all [f]ederal and [s]tate laws, including but not limited to the

New Jersey [Consumer Fraud Act, N.J.S.A. 56:8-1 to -210], the New

Jersey RICO statute, [N.J.S.A. 2C:41-1 to -6.2], and the Licensed

Lenders Act."2   She further agreed not to "engage in any unfair or

deceptive acts or practices in the conduct of any business," to

pay $22,000 in "[s]ettlement of the [a]ction," to face increased

penalties if she were to engage in any mortgage fraud related

activities, and to abide by strict reporting requirements.

     On April 7, 2017, following oral argument, the judge denied

the State's motion, finding that the consent judgment failed to

meet the third and fourth prongs of the test for admissibility set

forth   in   State   v.   Cofield,       127   N.J.   328,   338   (1992).3

Acknowledging that the consent judgment was not the result of an

adjudication or trial and did not require Strickland to admit




2
   Prior to 2009, both mortgage lending and consumer loans were
subject to the New Jersey Licensed Lenders Act. L. 1996, c. 157.
However, mortgage lending is now subject to the New Jersey
Residential Mortgage Lending Act, N.J.S.A. 17:11C-51 to -89.
3
   Under the four-prong Cofield test, other-crimes evidence is
admissible only if: (1) relevant to a material issue; (2) similar
in kind and reasonably close in time to the offense charged; (3)
supported by clear and convincing evidence; and (4) its prejudice
does not outweigh its probative value. 127 N.J. at 338.

                                     5                             A-0041-17T2
liability or wrongdoing of any kind, the judge explained that

admitting the judgment

            would have the exact effect      and result of
            attributing criminal intent,    wrongdoing, or
            liability to Strickland.   It   would have the
            effect of a prior conviction,   when it is not.

                 In addition, any discussion about the
            three separate 2008 transactions [embodied in
            the Attorney General's civil mortgage fraud
            complaint]   would   certainly  enhance   the
            possibility of confusion with the issues to
            be resolved in this case by the jury.

     After the judge denied the State's N.J.R.E. 404(b) motion,

Gardner moved to sever in order to pursue a third-party guilt

defense based on the 2009 mortgage fraud complaint and 2011 consent

judgment.    On May 1, 2017, during oral argument on the motion,

Gardner argued she was entitled to present, in her defense, the

2011 consent judgment as well as a potential victim identified in

the 2009 civil complaint whom, like Gardner, Strickland allegedly

"took advantage of."   Gardner asserted that because the court had

already barred the evidence as unfairly prejudicial to Strickland,

separate trials were necessary.   The State objected and, contrary

to its prior position, argued the consent judgment did not meet

even the lesser burden for a defendant's use of 404(b) evidence

because "it would mislead and confuse the jury" and was "unfairly

prejudicial" to the State.



                                  6                           A-0041-17T2
      After oral argument, the judge issued an oral decision,

determining that, although the evidence did not "survive the

Cofield test, it [did] pas[s] the less rigorous balancing test of

[N.J.R.E.] 403."         As a result, the judge granted severance to

allow "Gardner the opportunity to mount the defense that she [was]

[c]onstitutionally entitled to present" and "to allow [her] the

full exercise of her due process rights."                  The judge declined,

however, to "address the issue of . . . antagonistic defense[s],"

noting that it was "not relevant" at that point, and entered a

memorializing order to sever defendants on the same date.

      The State moved for reconsideration of the May 1, 2017

severance order, distinguishing Weaver, where "the evidence that

was   sought   to   be    admitted       was   supported      by    a    Judgment      of

Conviction,"    from     this    case,    where   "the   [c]onsent           [j]udgment

verbatim [did] not admit any liability or wrong doing of anything."

According to the State, the consent judgment did "not negate the

guilt   of . . . Gardner"        or    "nullify   any    of    the      other      acts,"

including Gardner's       purchase of a BMW "within days of the closing

of    the   [Avenel]     property,"       Strickland's        use       of   the     BMW,

Strickland's    addition        to    Gardner's   insurance         policy,     or    the

"payment arrangements [for the insurance policy] between the two

individuals."       The    State      asserted    that   the       evidence        linked

defendants "in a way that show[ed] that Ms. Gardner was not

                                          7                                     A-0041-17T2
completely innocent and was not completely [naïve] as to what was

going on."

     On July 20, 2017, the judge issued an order and written

decision, denying the State's motion and upholding his initial

decision.    He determined the State only sought reconsideration "to

reargue the motion for severance," and because it "did not agree

with the outcome of the court's balancing of [the N.J.R.E. 403]

factors," which were impermissible grounds for reconsideration

under State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015).

Noting that "[t]he factual distinctions (or similarities) between

the Weaver . . . [and Gardner] cases [were] irrelevant" to his

ruling,     the   judge   acknowledged   the   Weaver   Court's   general

proposition that "[a]n accused is entitled to advance in his

defense any evidence which may rationally tend to refute his guilt

or buttress his innocence of the charge made."          Thus, the judge

"concluded that the prejudice to Gardner's due process rights and

her ability to present her defense outweighed the needs of judicial

efficiency . . . and any prejudice that could accrue to the [S]tate

by having to try the cases separately."        This appeal followed.

     On appeal, the State raises the following single point for

our consideration:




                                    8                             A-0041-17T2
          POINT I

          THE TRIAL JUDGE ERRED BY, AFTER CORRECTLY
          DENYING DEFENDANT STRICKLAND'S MOTION FOR
          SEVERANCE AND DENYING THE STATE'S MOTION TO
          ADMIT [N.J.R.E.] 404(B) EVIDENCE, GRANTING
          DEFENDANT GARDNER'S MOTION FOR SEVERANCE.

      "The decision whether to grant severance rests within the

trial court's sound discretion and is entitled to great deference

on appeal."    State v. Brown, 118 N.J. 595, 603 (1990); see also

State v. Sterling, 215 N.J. 65, 73 (2013) ("A court must assess

whether prejudice is present, and its judgment is reviewed for an

abuse of discretion.").        A court may try two or more defendants

together "if they are alleged to have participated in the same act

or transaction or in the same series of acts or transactions

constituting an offense or offenses."        R. 3:7-7.    Indeed, there

is a "general preference to try co-defendants jointly," State v.

Robinson, 253 N.J. Super. 346, 364 (App. Div. 1992), particularly

when "much of the same evidence is needed to prosecute each

defendant," Brown, 118 N.J. at 605.          In some circumstances, a

joint trial is "'preferable' because it serves judicial economy,

avoids inconsistent verdicts, and allows for a 'more accurate

assessment of relative culpability.'"         Weaver, 219 N.J. at 148

(quoting Brown, 118 N.J. at 605).

      "Nevertheless, a single joint trial, however desirable from

the   point   of   view   of    efficient   and   expeditious   criminal

                                     9                           A-0041-17T2
adjudication, may not be had at the expense of a defendant's right

to a fundamentally fair trial."                 State v. Sanchez, 143 N.J. 273,

290 (1996) (quoting United States v. Echeles, 352 F.2d 892, 896

(7th Cir. 1965)).       Thus, if the court finds that permissible or

mandatory joinder will prejudice one or both defendants, it may

"grant a severance of defendants[] or direct other appropriate

relief."    R.    3:15-2(b).          However,       "[t]he    test    for   granting

severance . . . is a rigorous one."                 Brown, 118 N.J. at 605-06.

"The danger by association that inheres in all joint trials is not

in itself sufficient to justify a severance, provided that by

proper instructions to the jury, the separate status of co-

defendants can be preserved."              Id. at 605.    Nonetheless, "[i]t is

possible   that   the    level   of    antagonism        between      co-defendants,

despite the absence of mutually exclusive defenses, can become so

intense as to justify a severance."                Id. at 608.

      One such basis for severance arises when restrictions on the

admissibility of exculpatory evidence, such as proof of a co-

defendant's prior bad acts under N.J.R.E. 404(b), would unfairly

prejudice a defendant at a joint trial, but the restrictions would

be unnecessary in separate trials.                See Weaver, 219 N.J. at 157-

58.    Generally,       evidence      of    other     crimes    or     bad   acts    is

inadmissible "to prove the disposition of a person in order to

show that such person acted in conformity therewith" on another

                                           10                                 A-0041-17T2
occasion.   N.J.R.E. 404(b).    However, a defendant "may use other-

crimes evidence in support of his [or her] defense 'if in reason

it tends, alone or with other evidence, to negate his [or her]

guilt of the crime charged.'"      Weaver, 219 N.J. at 157 (quoting

State v. Garfole, 76 N.J. 445, 453 (1978)).

       Such defensive use of other crimes or bad acts evidence,

"sometimes referred to as 'reverse 404(b)' evidence," is not

subject to the more stringent test of N.J.R.E. 404(b) admissibility

set forth in Cofield, 127 N.J. at 338, "because 'an accused is

entitled to advance in his [or her] defense any evidence which may

rationally tend to refute his [or her] guilt or buttress his [or

her] innocence of the charge made.'"       Weaver, 219 N.J. at 150

(quoting Garfole, 76 N.J. at 453).      Instead, "[a]dmissibility of

this evidence is governed by N.J.R.E. 401, not N.J.R.E. 404(b)."

Weaver, 219 N.J. at 157.        Thus, "simple relevance to guilt or

innocence" is sufficient, as "prejudice to the defendant is no

longer a factor."    Id. at 150 (quoting Garfole, 76 N.J. at 452-

53).    Evidence is relevant if it has "a tendency in reason to

prove or disprove any fact of consequence to the determination of

the action."    N.J.R.E. 401.

       In addition to relevance, this "more relaxed standard" still

requires the court to "determine that the probative value of the

evidence is not substantially outweighed by any of the [N.J.R.E.]

                                  11                         A-0041-17T2
403 factors" for exclusion.             Weaver, 219 N.J. at 151; see also

N.J.R.E. 403.     Under this standard, "the question . . . is not

relevance as such, but the degree of relevance balanced against

the counter considerations expressed in [N.J.R.E. 403] of undue

consumption of time, confusion of the issues[,] and the misleading

of the jury."     Garfole, 76 N.J. at 451.            "This determination is

[also] highly discretionary."            Weaver, 219 N.J. at 151.

     Another basis for severance arises "when a defendant's and a

co-defendant's    defenses        are    not   simply    at   odds,     but     are

'antagonistic at their core,' meaning that they are mutually

exclusive and the jury could believe only one of them."                   Id. at

149 (quoting Brown, 118 N.J. at 605-07).                Conversely, "[i]f the

jury can return a verdict against one or both defendants by

believing     neither,       or         believing     portions     of         both,

or . . . believing both completely, the defenses are not mutually

exclusive."     Brown, 118 N.J. at 606.             A court should not grant

severance merely because "one defendant seeks to escape conviction

by placing guilt on his or her co-defendant."              Ibid.

     Here, we discern no abuse of discretion in the judge's

decision that Gardner's defensive use of the evidence constitutes




                                         12                              A-0041-17T2
sufficient grounds for severance.4             Strickland's 2011 consent

judgment is relevant to Gardner's case because it rationally

supports her defense that she "was a mere dupe of a sophisticated

individual versed in mortgage fraud."          Indeed, the State admitted

as much in its N.J.R.E. 404(b) motion to introduce the consent

judgment in its case in chief, where it argued the "conduct that

was relevant to the civil judgment in . . . 2011 is substantially

similar    to    the    conduct . . . charged     in   this   indictment."5

According to the State, not only was the conduct substantially

similar,        it     was   "sophisticated"      because     "there     are

institutions, . . . mechanisms, and procedures in place that are

more complex than what perhaps a normal layperson may understand."

This type of evidence, standing alone or in combination with other

evidence, may refute Gardner's guilt or buttress her claim of

innocence.      See Weaver, 219 N.J. at 150.      Reverse 404(b) evidence



4
  We note the judge's ruling is entirely consistent with his prior
ruling denying the State's application to admit the 2011 consent
judgment under N.J.R.E. 404(b) based on, among other things, its
prejudice to Strickland outweighing its probative value.
5
   We note the State's contrary argument in its merits brief that
"[t]he consent judgment was the result of litigation that involved
an entirely different scheme" and "is proof of no fact of
consequence to this case." On the contrary, the compelling nature
of the evidence is demonstrated by its role in the State's decision
to dismiss the criminal complaint against Charles once his proffer
session revealed the existence of the 2009 complaint and inevitably
led to the discovery of the 2011 consent judgment.

                                    13                              A-0041-17T2
does not have to refute a defendant's guilt on its own in order

to be admissible; a defendant can use it in conjunction with other

evidence.   See Weaver, 219 N.J. at 150; see also Garfole, 76 N.J.

at 453.   Thus, the judge reasonably concluded the consent judgment

met the simple relevance standard for admissibility of reverse

404(b) evidence.

      Likewise, turning to the N.J.R.E. 403 factors, the judge

properly concluded the factors did not outweigh the probative

value of the evidence.         Garfole, 76 N.J. at 453-54; see also

Weaver, 219 N.J. at 157.       Although the judgment did not require

Strickland to admit any wrongdoing, it prohibited her from engaging

in "any unfair or deceptive acts or practices in the conduct of

any business" and imposed a sanction.       As the State alleged in its

own   N.J.R.E.    404(b)   motion,   Strickland   allegedly   "engaged   in

criminal behavior of the exact same nature six weeks later," which

was "contrary to [her] affirmative obligations in [the consent

judgment]."      The judge expressed his intent to limit the scope of

inquiry into the underlying facts of the 2009 mortgage fraud case

in order to avoid any potential confusion of issues or misleading

of the jury.     Under these circumstances, we agree with the judge's

determination that any applicable N.J.R.E. 403 factors did not

outweigh Gardner's right to due process and to present a defense.



                                     14                           A-0041-17T2
      We also find no error in the judge's denial of the State's

motion for reconsideration.      See Puryear, 441 N.J. Super. at 294.

Because we discern no abuse of discretion in either of the judge's

decisions, like the judge, we need not address whether Gardner's

and   Strickland's   positions    were   antagonistic   and   mutually

exclusive as an alternative basis for severance.

      Affirmed.




                                  15                           A-0041-17T2
