                                NOT FOR PUBLICATION WITHOUT THE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-0857-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MOHAMED F. ABDI, a/k/a
MICHAEL CASTRO,

     Defendant-Appellant.
_____________________________

                    Submitted November 13, 2018 – Decided November 21, 2018

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment Nos. 17-02-0085
                    and 17-02-0120.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Brian P. Keenan, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Charles C. Cho, Assistant Prosecutor, on
                    the brief).

PER CURIAM
         A Hudson County grand jury charged defendant Mohamed Abdi in a

single eight-count indictment with two armed robberies and related weapons

offenses. The first four counts of the indictment concerned the robbery of a

convenience store on July 3, 2016, and charged defendant with first -degree

robbery, N.J.S.A. 2C:15-1(a)(3) (count one); third-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b)(2) (count two); second-degree possession of

a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three); and

second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count

four).

         The remaining counts of the indictment involved the robbery of a liquor

store on July 4, 2016, and charged defendant with first-degree robbery, N.J.S.A.

2C:15-1(a)(1) (count five); second-degree possession of a handgun for an

unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count six); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count seven); and second-

degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count eight).

         On May 12, 2017, Judge Mark Nelson rendered a comprehensive oral

opinion denying defendant's motion to sever counts one through four concerning

the July 3 robbery from counts five through eight covering the July 4 robbery.

Defendant then pled guilty to counts one and five. Judge Nelson sentenced


                                                                         A-0857-17T3
                                         2
defendant to concurrent thirteen-year terms in prison on each charge, subject to

the 85% parole ineligibility provisions of the No Early Release Act, N.J.S.A.

2C:43-7.2, with five years of parole supervision upon release. This appeal

followed.

      On appeal, defendant argues that "the judge made erroneous findings of

fact and misapplied the law in denying defendant's motion to sever the

off[]enses." After reviewing the record in light of this contention and the

applicable law, we affirm.

      We begin by summarizing the pertinent facts. At approximately 12:00

p.m. on July 3, 2016, a tall, slender man, who was wearing a blue hat with white

writing across the front, entered a convenience store. The man was carrying a

black bag with a strap across his right shoulder. The man asked the clerk for

two packs of cigarettes, and then left without paying for them. The clerk went

outside and told the man he needed to pay for the cigarettes. The man returned

to the store, produced a black handgun from his waistband, showed it to the

clerk, and asked, "Do you still want me to pay?" The man then fled the store

and ran away down the street.

      Shortly before midnight the following day, defendant and his brother,

Hayer Abdi, went into a liquor store and attempted to buy a bottle of whiskey.


                                                                        A-0857-17T3
                                       3
Defendant, who matched the physical description of the perpetrator in the July

3 robbery, was wearing a blue hat with white writing on it, and carried a black

bag with a strap across his right shoulder.

      There were two clerks in the store. One of them told the men that she

could not sell them whiskey because it was after 10:00 p.m. Defendant became

angry, brandished a black handgun at the clerks, and ran out of the store with

the bottle. Defendant's brother remained in the store. The police were able to

apprehend defendant a short distance away, and recovered the black bag and the

black handgun. The clerks were able to identify defendant as the perpetrator

during a show-up identification procedure.

      Both stores had surveillance cameras, and the police were able to obtain a

still photograph of defendant from the July 4 robbery, and the suspect in the July

3 robbery. Defendant bore a striking resemblance to the man who robbed the

convenience store. However, the clerk at the convenience store was unable to

identify defendant from the photographs.

      Defendant filed a motion to sever the charges concerning the two

robberies. He asserted then, and repeats this argument on appeal, that the

admission of information establishing his identity in the July 4 robbery would




                                                                          A-0857-17T3
                                        4
be unduly prejudicial if used to prove he was the man who committed the July

3 robbery. We disagree.

       Generally, in deciding a motion for severance, the trial judge enjoys "a wide range

of discretion[.]" State v. Coruzzi, 189 N.J. Super. 273, 297 (App. Div. 1983). A denial

of a motion for severance should not be reversed "absent a mistaken exercise of that

discretion." Ibid.

       "[W]here the evidence establishes that multiple offenses are linked as part of the

same transaction or series of transactions, a court should grant a motion for severance

only when [a] defendant has satisfied the court that prejudice would result." State v.

Moore, 113 N.J. 239, 273 (1988). The courts have recognized that any trial involving

several charges "probably will involve some potential of [prejudice], since the

multiplicity alone may suggest to the jury a propensity to criminal conduct." Coruzzi,

189 N.J. Super. at 297. However, "other considerations, such as economy and judicial

expediency, must be weighed" when deciding a severance motion. Ibid. These interests

may require that charges remain joined, "so long as the defendant's right to a fair trial

remains unprejudiced." Id. at 298.

       The proper inquiry when deciding a motion for severance is whether, if the crimes

were tried separately, evidence of the severed offenses would be admissible at the trial of

the remaining charges. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). If the evidence


                                                                                  A-0857-17T3
                                            5
would be admissible at both trials, the trial court should not sever the charges, because

the defendant "will not suffer any more prejudice in a joint trial than he would in separate

trials." Coruzzi, 189 N.J. Super. at 299. To evaluate whether evidence of each crime

would be admissible at the trial of the others, and thus whether severance should be

denied, the trial court must utilize the same standard used to determine whether other-

crime evidence is admissible under N.J.R.E. 404(b). Chenique-Puey, 145 N.J. at 341.

       The Supreme Court's opinion in State v. Cofield, 127 N.J. 328, 338 (1992), sets

forth the well-established test for deciding whether evidence is admissible under this rule:

              1. The evidence of the other crime must be admissible as
              relevant to a material issue;

              2. It must be similar in kind and reasonably close in time to
              the offense charged;[1]

              3. The evidence of the other crime must be clear and
              convincing; and

              4. The probative value of the evidence must not be
              outweighed by its apparent prejudice.

              [(quoting Abraham P. Ordover, Balancing the Presumption of
              Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38
              Emory L.J. 135, 160 (1989)).]




1
  In subsequent case law, the Supreme Court has indicated this second prong of
Cofield does not always need to be satisfied. See State v. Williams, 190 N.J.
114, 131-34 (2007).
                                                                                   A-0857-17T3
                                             6
       The party seeking to admit other-crime evidence bears the burden to establish each

of the four prongs. See State v. J.M., 225 N.J. 146, 158-59 (2016). A court's

determination on the admissibility of other-crime evidence is "entitled to deference" and

is "reviewed under an abuse of discretion standard." State v. Ramseur, 106 N.J. 123, 266

(1987). "Only where there is a 'clear error of judgment' should the 'trial court's conclusion

with respect to [the] balancing test' be disturbed." State v. Marrero, 148 N.J. 469, 483

(1997) (quoting State v. DiFrisco, 137 N.J. 434, 496-497 (1994)).

       When weighing the probative value of N.J.R.E. 404(b) evidence against its

prejudicial nature under the fourth prong of Cofield, a court must focus on "the specific

context in which the evidence is offered[.]" State v. Stevens, 115 N.J. 289, 303 (1989).

The court should also consider whether the fact the other-crime evidence is offered to

prove "cannot be proved by less prejudicial evidence." State v. Hardaway, 269 N.J.

Super. 627, 631 (App. Div. 1994). Further, judicial economy in some circumstances may

justify denying a severance motion where many of the same witnesses would need to

testify in each trial if the counts were separated. Moore, 113 N.J. at 276.

       Judge Nelson thoroughly addressed each of the four Cofield factors in detail in his

oral decision. As to Prong One, the judge found that the question of defendant's identity

was plainly relevant. Indeed, it is well established that "evidence of a later crime may be

admitted on the issue of identity when [the] defendant's connections to the first crime was


                                                                                    A-0857-17T3
                                             7
established by specific evidence discovered during the second crime." State v. Sterling,

215 N.J. 65, 92 (2013). Here, defendant was identified by the victims of the second

robbery. As discussed above, the surveillance photograph of defendant from the July 4

robbery is strikingly similar to the photograph of the suspect in the first robbery, and

would clearly be helpful in establishing that defendant was the perpetrator in that incident.

       Under Prong Two, the judge found that the two crimes were similar in kind,

although not identical. Both started as shoplifting incidents, but became robberies when

the suspect brandished a handgun. The offenses took place only thirty-six hours apart.

The hat defendant wore on July 4, and the black bag he carried, look to be the

same as those the suspect had the day before. In addition, defendant's physical

appearance closely matched the July 3 suspect.

       Judge Nelson found that Prong Three was also met because the evidence

was clear and convincing. In addition to the photographs of each robbery, the

State had the videotape to show the jury so it could make a determination

whether defendant was the actor in both crimes.

       Finally, Judge Nelson noted that like all evidence that establishes a

defendant's guilt, the evidence from the July 4 robbery would "prejudice"

defendant in connection with the July 3 offense because it would likely establish

that he was the person who stole cigarettes from the clerk after showing a


                                                                                    A-0857-17T3
                                             8
handgun. However, the judge concluded that the probative value of the evidence

from the July 4 robbery in establishing defendant's identity in the first crime

more than outweighed that prejudice.     Thus, the judge concluded that the State

established all of the factors militating against severance.

      We discern no legal error, nor any abuse of discretion in Judge Nelson's

comprehensive analysis of the severance issue. We therefore affirm the denial

of defendant's severance motion substantially for the reasons set forth in the

judge's thoughtful oral opinion.

      Affirmed.




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                                        9
