                                NOT FOR PUBLICATION WITHOUT THE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-0186-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAUL ZARCO, a/k/a RAUL
RIVERA, ERICK ZARCO,
ERIC ZARCO, and POMPO,

     Defendant-Appellant.
____________________________

                   Argued telephonically May 4, 2020 –
                   Decided July 16, 2020

                   Before Judges Moynihan and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 15-09-
                   1092.

                   Stephen W. Kirsch, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Stephen W. Kirsch, on the brief).

                   David M. Liston, Special Deputy Attorney General/
                   Acting Assistant Prosecutor, argued the cause for
                   respondent (Christopher L.C. Kuberiet, Acting
            Middlesex County Prosecutor, attorney; David M.
            Liston, of counsel and on the brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Following a jury trial, defendant Raul Zarco appeals from his conviction

of and sentence for three counts of first-degree robbery, N.J.S.A. 2C:15-1

(counts five, thirteen and fourteen); two counts of third-degree terroristic

threats, N.J.S.A. 2C:12-3(b) (counts six and fifteen); two counts of third-degree

theft by unlawful taking, N.J.S.A. 2C:20-3(a) (counts seven and sixteen); three

counts of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2

and N.J.S.A. 2C:15-1 (counts eight, seventeen and twenty-six); one count of

second-degree attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (count

twenty-five); and one count of fourth-degree possession of a weapon for an

unlawful purpose – imitation firearm, N.J.S.A. 2C:39-4(e) (count twenty-

seven).1


1
  The trial court dismissed two counts of first-degree robbery, N.J.S.A. 2C:15-
1 (counts twenty-two and twenty-eight); two counts of third-degree terroristic
threats, N.J.S.A. 2C:12-3(b) (counts twenty-three and twenty-nine); one count
of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count thirty);
and one count of second-degree conspiracy to commit armed robbery, N.J.S.A.
2C:5-2 and N.J.S.A. 15-1 (count thirty-one), in granting defendant's motion for
judgment of acquittal after the State rested, R. 3:18-1. The jury found defendant


                                                                         A-0186-18T4
                                       2
      On appeal he argues:

            POINT I

            THE COURT IMPROPERLY REPLACED A JUROR
            FOR CAUSE AFTER THE JURORS HAD
            REPORTED THAT THEY HAD REACHED A
            PARTIAL VERDICT, INSTEAD OF TAKING THE
            PARTIAL VERDICT AND DECLARING A
            MISTRIAL   ON    UNRESOLVED    COUNTS;
            CONSEQUENTLY, DEFENDANT'S CONVICTIONS
            MUST BE REVERSED AND THE MATTER
            REMANDED FOR RETRIAL.

            POINT II

            THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE.

In his pro se supplemental brief, he adds:

            POINT [I]

            THE [TRIAL COURT] ERRONEOUSLY DENIED
            [DEFENDANT'S] MOTION TO SEVER THE
            INDICTMENT IN VIOLATION OF THE [FIFTH]
            AMENDMENT OF THE UNITED STATES



not guilty of four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one,
nine, eighteen and twenty); four counts of third-degree terroristic threats,
N.J.S.A. 2C:12-3(b) (counts two, ten, nineteen and twenty-one); two counts of
fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (counts three and
eleven); two counts of second-degree conspiracy to commit armed robbery,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (counts four and twelve); and one count
of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count twenty-
four).


                                                                        A-0186-18T4
                                       3
            CONSTITUTION & ARTICLE [I] PARAGRAPH 8 OF
            THE NEW JERSEY CONSTITUTION.

                  A.     The Trial Court Erred By Denying
                         [Defendant's] Motion To Dismiss The
                         Indictment Because The Prosecutor Read
                         Misleading Case . . . Law To The Grand
                         Jury[] In Violation Of The [Fifth]
                         Amendment Of The United States
                         Constitution & Article [I] Paragraph 8 Of
                         the New Jersey Constitution.

                  B.     The Trial Court [S]hould [H]ave
                         [D]ismissed [T]he [I]ndictment [B]ecause
                         [T]he Grand Jury [W]as [N]ot [P]resented
                         [W]ith [E]vidence [T]hat [N]egated
                         [Defendant's] [G]uilt[] In Violation Of The
                         [Fifth] Amendment Of The United States
                         Constitution & Article [I] Paragraph 8 Of
                         The New Jersey Constitution.

            POINT [II]

            THE [TRIAL COURT] ERRONEOUSLY DENIED
            [DEFENDANT'S] MOTION TO SEVER THE
            INDICTMENT    BECAUSE    HE    WILL  BE
            PREJUDICED IF ALL THE COUNTS ARE TRIED
            TOGETHER IN VIOLATION OF THE [SIXTH]
            AMENDMENT OF THE UNITED STATES
            CONSTITUTION AND ARTICLE [I] PARAGRAPH 9
            OF THE NEW JERSEY CONSTITUTION.

      Because the trial court erred by replacing the dismissed juror after the jury

announced they had reached a partial verdict on all but one count, on which they

were deadlocked, we are compelled to reverse. In light of our decision, we need


                                                                           A-0186-18T4
                                        4
not address defendant's sentencing argument. We will, however, briefly address

defendant's pro se arguments.

                                        I.

      We glean from the record the facts that inform our review. During five

days of trial testimony the State presented evidence, including testimony from

defendant's codefendant who had pleaded guilty and agreed to testify for the

State, that defendant participated in seven armed robberies.          Having been

charged the previous day, the jury began deliberations early on Thursday, March

15, 2018 after a single alternate and a foreperson were selected. 2

      Before lunch on the first day of deliberations, the jury made requests for:

defendant's mug shot, surveillance video of the March 13, 2015 alleged

attempted robbery and for the codefendant's statement (juror note C-2); and

extra copies of an unidentified document or documents (juror note C-3) which,

at 12:15 p.m., the trial court advised them would be provided when they returned

from lunch at 1:30 p.m. After lunch, the jury requested: to be recharged on




2
  Neither the court nor the clerk noted the time deliberations commenced. We
note from the transcriber's certification that the index of the CD she transcribed
began at 9:30:55 and ended at 4:25:42.



                                                                           A-0186-18T4
                                        5
count twenty-three (juror note C-5)3 and to see video from the January 30, 2015

alleged robbery, with the option to pause at certain points selected by the

foreperson (juror note C-6). The trial court complied with most of the jury's

requests, denying only the request for the mug shot and the codefendant's

statement, both of which were not in evidence.        The jury later requested

clarification about three photographs the State introduced into evidence ( juror

note C-8). The trial court relayed to the jury that it would take some time to

comply with the request and, without personally addressing the jurors, dismissed

them until Tuesday, March 20, 2018.

      The court addressed the jury's last request on the morning of March 20 ,

beginning with a playback of testimony beginning at 9:27 a.m. and ending at

9:32 a.m. The trial court also complied with requests to view the videos of: the

January 30, 2015 and the February 9, 2015 alleged robberies (juror notes C-10

and C-11), with playback commencing at 10:32 a.m. and ending at 10:52 a.m.;

and later, for photographs and more video from the February 9, 2015 and March

11, 2015 alleged robberies (juror note C-12) with playback commencing at 11:40

a.m. and ending at 11:52 a.m.; and video from the January 31, 2015 alleged


3
  The record does not offer us any reason why the notes were not sequentially
numbered. The index to exhibits lists only C-3, C-6 and C-8; the transcript does
not mention the "C" exhibits not mentioned here.
                                                                        A-0186-18T4
                                       6
robbery (juror note C-13) with playback commencing at 12:48 p.m. and ending

at 12:51 p.m., at which time the jury was sent to lunch with deliberations to

resume at 1:55 p.m.

      Sometime after lunch, 4 the jury sent the court a note (juror note C-14)

reading: "The jury has reached a verdict on all but one incident. The incident

that we have not reached a verdict on, we are deadlocked. We are asking Your

honor how you would like us to proceed." In response, the trial court instructed

the jury, in accordance with State v. Czachor, 82 N.J. 392 (1980), to continue

deliberating.

      Another note followed, 5 stating Juror 4 needed to speak to the court (juror

note C-15). After Juror 4 reported that her stepfather was gravely ill in the

hospital and she had to tend to medical decisions regarding his care, the court,

out of the juror's presence, told counsel:

                  Okay. So, at least it wasn't bullying. All right.
             So [Juror 4] has a personal matter that she is very
             concerned about. We got a partial verdict. Now, I
             wouldn't even know how to go about telling [the jury],

4
    Again, the time of the note was not noted by the court or clerk. The
transcriber's certification indicates the transcription of the first proceedings after
the lunch break had a Courtsmart time stamp beginning at 3:24:30 and ending
at 3:29:46.
5
 The transcriber's certification indicates the next Courtsmart time after 3:29:46
was 4:41:00.
                                                                              A-0186-18T4
                                          7
            okay, let's hear the partial verdict. Even if I say, it's
            quarter to five, go home and come back tomorrow. She
            doesn't want to come back. So we have a problem at
            this point.

                  We would have to begin the deliberations all over
            again, with . . . the alternate, if we take her off.

Noting that the juror had "been [t]here [for] a month" during the trial, the court

told counsel it was going to exercise discretion and release the juror, and "insert

[the alternate] into the jury and we will have to start all over again."

      The court also—with the consent of the assistant prosecutor and no

response from defense counsel—addressed the jury, including Juror 4:

                  Okay. Ladies and gentlemen, I've got one more
            thing I need to ask you to do. All right. You've
            indicated that your deliberations have reached an
            impasse. Do you feel that further deliberations will be
            beneficial, or . . . do you feel that you have reached the
            point at which further deliberations would be futile?
            Can you return to the jury room, to confer, and advise
            me of your decision in another note. That's it. All right.
            Hear what I said?

                   ....

                   Bottom line, if you reached an impasse, and you
            don't feel that any further deliberations are going to be
            fruitful, please let me know. All right.

      While waiting for the jury's response, the court told counsel, "[i]f they tell

me that they can't go any further, then I'm gonna take the partial verdict." The


                                                                            A-0186-18T4
                                         8
jury, however, sent a note; as described by the court, the jury advised it felt

"more deliberation [was] needed to reach a unanimous verdict on the outstanding

count." Without further discussion, the court told the jury it was releasing them

for the day because "it[ was] after 5:00 [p.m. and] the weather [was] bad,"

instructing them to return the next day at 8:30 a.m., weather permitting. Juror 4

remained after the other jurors were excused. The court excused her from

continued service.

      After Juror 4 departed, the following colloquy between the court and

defense counsel immediately ensued:

            [DEFENSE COUNSEL]: Judge, for the record, on
            behalf of [defendant], we make an application to take
            the partial verdict, and declare the remaining counts
            hung. And declare those remaining counts as a mistrial.

            THE COURT: I understand what you're saying
            [defense counsel], but based upon all the information
            that I have, I can't make [the jury] come back with a
            partial verdict. All right. Once I send them back in and
            tell them to deliberate, if they don't come back and tell
            me they don't want to deliberate, and they want to give
            a partial verdict, I can take it, but I can't knock on the
            door and tell them, oh, we changed our mind, we'll take
            the partial verdict. Okay.

                  I'm not upset with that. I know you have to do
            what you have to do, but I . . . want you to know that
            I'm not being obstinate, I just don't have the discretion
            to do something like that. Okay.


                                                                         A-0186-18T4
                                        9
      The jury returned on Thursday, March 22, 2018.6 The trial court, after

telling the jury Juror 4 had been excused and that the alternate would take her

place, instructed:

                   As of this moment, you are a new jury. You must
            start your deliberations all over again. The parties have
            a right to a verdict reached by twelve jurors who have
            had the full opportunity to deliberate from start to
            finish. The alternate juror has no knowledge of any
            earlier deliberations.        Consequently, the new
            deliberating juror must start over at the very beginning
            of deliberations.

                  Each member of the original deliberating jury
            must set aside and disregard whatever . . . may have
            occurred and anything which may have been said in the
            jury room following . . . my instructions to you.

                   You must give no weight to any opinion
            expressed by Juror . . . 4 during deliberations before
            that juror was excused.

                  Now, together, as a new . . . jury, you must
            consider all evidence presented at trial as part of your
            full and complete deliberations until you reach your
            verdict.

      Without further interaction with the court, the jury returned its verdict on

all counts. The time of the verdict is not noted in the record, but the transcriber

certified she prepared the "transcript of proceedings on Courtsmart with time


6
  Apparently, courts were closed on March 21, 2018, because of inclement
weather.
                                                                           A-0186-18T4
                                       10
stamp 11:47:20 to 11:54:03 and 2:12:00 to 2:36:40[.]" We discern, albeit

without certainty, that the verdict was returned during the morning proceedings

in that after the return there were further proceedings, with the court inquiring

if the jurors saw defendant earlier that day in handcuffs. In any event, the verdict

was returned the same day the jury was reconstituted.

      The State argues the trial court properly exercised its discretion under

Rule 1:8-2(d)(1) to substitute the alternate juror. Rule 1:8-2(d)(1) provides for

the substitution of a juror if a juror is discharged because of an inability to

continue. When there is a substitution of a juror, the court must "instruct the

jury to recommence deliberations and shall give the jury such other

supplemental instructions as may be appropriate." Ibid. The Rule "delicately

balances two important goals: judicial economy and the right to a fair jury trial."

State v. Ross, 218 N.J. 130, 146 (2014) (quoting State v. Jenkins, 182 N.J. 112,

124 (2004)). As compared to substituting jurors, "[d]eclaring a mistrial imposes

enormous costs on [the] judicial system, from the expenditure of precious

resources in a retrial to the continued disruption in the lives of witnesses and

parties seeking closure." Jenkins, 182 N.J. at 124.




                                                                            A-0186-18T4
                                        11
      Alternatively, the State contends if the court did err, defendant, by waiting

until Juror 4 was excused to request a partial verdict be taken, invited error, or

that any error committed was, absent objection, not plain error. See R. 2:10-2.

      The trial court failed to follow our Supreme Court's direction to take a

partial verdict before excusing a juror after the panel had indicated it reached a

partial verdict. As such, its decision to excuse the juror, and instruct the jury to

continue deliberations anew with the alternate juror "inexplicably departed from

established policies [and] rested on an impermissible basis," and was thus an

abuse of discretion. Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002);

see also State v. R.Y., ___ N.J. ___, ___ (2020) (slip op. at 18).

      Notwithstanding the authority of the trial court to substitute jurors in some

instances, see Ross, 218 N.J. at 146-47, 151, the Court made clear "if a partial

verdict has been rendered, or the circumstances otherwise suggest that jurors

have decided one or more issues in the case, the trial court should not authorize

a juror substitution, but should declare a mistrial," id. at 151. Contrary to the

State's argument that by using the term, "should," the Court did not mandate that

a partial verdict be taken and a mistrial declared, and that the trial court still had

discretion to substitute for a dismissed juror, the Court—in a decision that the

State in its merits brief conceded presented a "'juror substitution issue,' which is


                                                                              A-0186-18T4
                                         12
similar to the issue presented . . . in this case," and which both parties at oral

argument requested that we review prior to deciding this case—recognized the

"rich and fulsome jurisprudence on the issue of juror substitution in the face of

a jury having reached a partial verdict." State v. Horton, ___ N.J. ___, ___

(2020) (slip op. at 3). The Court held, in those circumstances: "Quite simply,

substitution is impermissible. The proper course is for the trial court to take the

partial verdict and declare a mistrial on the open counts." Ibid.

      The Court harkened to its prior decisions, instructing:

            "[W]hen the circumstances suggest a strong inference
            that the jury has affirmatively reached a determination
            on one or more factual or legal issues the trial court
            should not substitute an alternate for an excused juror."
            [Ross, 218 N.J. at 151]. We have "h[e]ld that
            substitution of a juror after the return of partial verdicts
            for the purpose of continuing deliberations in order to
            reach final verdicts on remaining counts [constitutes]
            plain error." State v. Corsaro, 107 N.J. 339, 354 (1987).
            "[I]f a partial verdict has been rendered, or the
            circumstances otherwise suggest that jurors have
            decided one or more issues in the case, including guilt
            or innocence, the trial court should not authorize a juror
            substitution, but should declare a mistrial." Ross, 218
            N.J. at 151.

            [Ibid. (first, third, fourth and fifth alterations in
            original).]

      As such, the trial court committed plain error by failing to take a partial

verdict and declare a mistrial on the unresolved count. R. 2:10-2; see also State

                                                                           A-0186-18T4
                                       13
v. Macon, 57 N.J. 325, 336 (1971). The trial court's decision to allow continued

deliberations leaves the same quandary the Court noted in Horton:

            [W]e cannot know whether the jury will "start anew"
            with the entry of a substitute juror and discard their
            views simply because there is a new juror amongst
            them. Nor can we know if the new juror will exercise
            independence or simply go along with the opinions of
            the existing jurors. We cannot know or speculate
            whether the replacement juror was a "full participant[]
            in the mutual exchange of ideas."

            [Slip op. at 4 (second alteration in original).]


We, therefore, reverse and remand to the trial court for a new trial.

                                        II.

      We would typically address defendant's pro se arguments that the trial

court erred in denying his pretrial motion to dismiss the indictment and to sever

the counts (counts eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-

three and twenty-four) pertaining to the alleged March 11, 2015 robbery and the

counts (counts twenty-five, twenty-six and twenty-seven) pertaining to the

March 13, 2015 alleged attempted robbery from the other alleged crimes . We,

however, decline to fully address those issues.

      Defendant argues the indictment should have been dismissed because the

State, in presenting the matters to the grand jury, "read misleading case law to


                                                                         A-0186-18T4
                                       14
the grand jury," and "because the [State] did not present the grand jury with . . .

evidence that negated his guilt."

      As to the former argument, defendant did not include grand jury

transcripts in the appellate record, preventing any review of the assistant

prosecutor's instructions to the grand jury. R. 2:5-4(a); see also R. 2:5-3(a).

And, the trial court's decision in which it describes the challenged instruction as

"an abundance of extra stuff, which wasn't necessary but nonetheless, nothing

was inaccurate," does not inform our review. Although the court noted the

statutory definition of "deadly weapon" was amended in 1982, "[a]nd

notwithstanding what [the assistant prosecutor] said about [case law], that is the

key to the viability of this indictment," the court did not adequately explain its

reasons for denying the motion to dismiss. R. 1:7-4(a).

      As the State correctly recognized in its merits brief, defendant does not

proffer any exculpatory evidence to support his latter argument, but argues the

evidence presented to the grand jury was insufficient to support its return. At

oral argument, defense counsel told the trial court there was "nothing in the

grand jury [presentation] which even indicates how [the codefendant who gave

a statement to authorities informing that defendant alone committed the March

11, 2015 robbery] knows about this[.]"


                                                                           A-0186-18T4
                                       15
      Defendant did not include the codefendant's statement to authorities in the

appellate record. In its oral decision, the trial court reasoned defendant and the

codefendant "were robbing partners for quite some time, [so] one would

presume" or that a rational inference could be drawn that defendant told the

codefendant about the robbery. When defense counsel countered that there was

no evidence presented to the grand jury to establish that inference or that the

codefendant knew about the robbery, the trial court responded: " That[ would]

be a pretty good cross-examination.         That doesn't say anything about the

sufficiency of the indictment. No. Your motion to dismiss the indictment is

denied. . . . [T]here's nothing wrong with that indictment." Without the grand

jury transcript, the codefendant's statement and a sufficient explanation for the

trial court's ruling, R. 1:7-4(a), we are unable to analyze the sufficiency of the

evidence.

      In his supplemental brief, defendant also argues "[c]ounts eighteen

[through] twenty-four pertaining to the March 11, 2015 robbery allegedly

involving only [defendant] should be [severed]." He adds, "[c]ounts twenty-

seven, twenty-six, and twenty-five pertaining to the attempted robbery . . . on

March 13, 201[5] should be [severed]."




                                                                          A-0186-18T4
                                       16
      Defendant's argument disregards the trial court's dismissal of some counts

and the jury's not guilty verdict on all remaining counts related to the March 11

robbery, rendering that issue moot. See State v. Davila, 443 N.J. Super. 577,

584 (App. Div. 2016) (stating that an issue is deemed "moot when 'the decision

sought in a matter, when rendered, can have no practical effect on the existing

controversy'" (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254,

257-58 (App. Div. 2006))). As to the added argument, we are unable to address

the denial of defendant's motion to sever the counts related to the March 13

incidents.

      The trial court denied defendant's severance motion, finding the seven

separate incidents on which the indictment counts were based were "parts of a

common plan or scheme that, and [the codefendant] brings that together, that

these two were on a robbery spree in Woodbridge and Perth Amboy beginning

January and finally ending in March" 2015. Again, the codefendant's statement

is not included in the record, and the trial court's terse oral decision is

insufficient for us to determine if the court mistakenly exercised its discretion

in denying the motion, see State v. Coruzzi, 189 N.J. Super. 273, 297 (App. Div.

1983), especially considering we see no mention by the trial court that it

considered prejudice to defendant in that analysis, State v. Moore, 113 N.J. 239,


                                                                         A-0186-18T4
                                      17
273 (1988) ("[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.").

      The trial court also considered the severance issue under N.J.R.E. 404(b).

Under that analysis, the appropriate inquiry 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 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 a crime would be admissible at a trial on other

crimes, and thus whether severance should be denied, the motion 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.

      Of course, the well-established test for determining admissibility under

that Rule requires a trial court to determine if the proponent established each of

the four prongs, see State v. J.M., 225 N.J. 146, 158 (2016), set forth in State v.

Cofield, 127 N.J. 328, 338 (1992):


                                                                           A-0186-18T4
                                       18
            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;

            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
            Presumptions Of Guilt And Innocence: Rules 404(b),
            608(b), And 609(a), 38 Emory L.J. 135, 160 (1989)).]

      Analyzing the Cofield factors, the trial court concluded "the issue of

identity obviously comes up . . . , which is obviously a material issue and

integrally related to common plan or scheme and the v[e]racity of what [the

codefendant] has to say." And, recognizing that the State was required to prove

defendant's specific intent to commit the March 13 attempted robbery where he

and the codefendant were arrested outside the store, the court noted the pair's

dress, including a ski mask, and "what they were doing as the [police] radio car

pulled up" to the store, and "that common plan or scheme put[] into context that"

the pair took a substantial step to commit the robbery that day. Ostensibly, that

was the court's attempt to link the attempted robbery to the others charged in the

indictment. The court continued:


                                                                          A-0186-18T4
                                       19
                    Indeed, in that count, given [defendant's]
            apparent reaction to the approach of the [police] radio
            cars, [the] State may very well be entitled to a flight
            charge. [Defense] would argue that it was mere
            departure; [the] State's going to argue that it was flight
            and consciousness of guilt. And a jury would have to
            decide that if it was, whether it was mere departure or
            flight.

      The trial court again contravened Rule 1:7-4(a). It did not delineate what

evidence of other crimes it found to be clear and convincing. Nor did the court

weigh the probative value of the evidence against the potential prejudice. We

are thus unable to determine if the trial court abused its discretion in denying

defendant's motion to sever the March 13, 2015 robbery from the others.

      We also observe, in light of the court's dismissal of and the jury's not

guilty verdict on counts related to four of the seven incidents, the calculus of the

Cofield analysis has changed.

      Absent a sufficiently established record, we cannot and do not determine

defendant's pro se arguments relating to his pretrial motions to dismiss the

indictment and for severance of certain counts. Reversed and remanded for a

new trial on the surviving counts. We do not retain jurisdiction.




                                                                            A-0186-18T4
                                        20
