                                     RECORD IMPOUNDED

                            NOT FOR PUBLICATION WITHOUT THE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-5582-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PATRICK O. POWELL, a/k/a
PATRICK EDWARDS, DANIEL
MITCHELL, and EDWARDS P.
MITCHELL,

     Defendant-Appellant.
_____________________________

                 Submitted September 21, 2018 – Decided November 14, 2018

                 Before Judges Simonelli and O'Connor.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Hudson County, Indictment No. 11-11-1869.

                 Joseph E. Krakora, Public Defender, attorney for
                 appellant (Jay L. Wilensky, Assistant Deputy Public
                 Defender, of counsel and on the brief).

                 Esther Suarez, Hudson County Prosecutor, attorney for
                 respondent (Erin M. Campbell, Assistant Prosecutor,
                 on the brief).
PER CURIAM

       A grand jury indicted defendant Patrick O. Powell for first-degree murder

of Robert Flagler, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count

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

(count three); first-degree attempted murder of defendant's mother, Irene Powell

(Irene),1 N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); fourth-degree

criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five); and second-degree

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

       Prior to the trial, the court granted defendant's motion to sever count five.

Defendant subsequently pled guilty to that count.         Following a jury trial,

defendant was convicted on count four of the lesser-included offense of

aggravated assault, N.J.S.A. 2C:12-1(b)(7). The jury was unable to reach a

verdict on the remaining charges. Defendant was retried and acquitted on the

remaining charges. The court granted the State's motion for a discretionary-

term sentence and imposed an eight-year term of imprisonment on count four.

The court also imposed a concurrent eighteen-month term of imprisonment on

count five and dismissed count six.


1
    We use Irene's first name because she and defendant share the same surname.
                                                                            A-5582-15T3
                                         2
        On appeal, defendant raises the following contentions:

              POINT I

                     THE TRIAL COURT ERRED IN
                     DENYING DEFENDANT'S MOTION
                     FOR SEVERANCE OF THE COUNT
                     ALLEGING ATTEMPTED MURDER
                     AGAINST HIS MOTHER, AND THE
                     ERROR       WAS      SUFFICIENTLY
                     PREJUDICIAL     TO     NECESSITATE
                     REVERSAL. [U.S. CONST., AMEND.
                     XIV; N.J. CONST., ART. I, ¶ 10].

              POINT II

                     THE TRIAL COURT IMPOSED AN
                     EXCESSIVE           SENTENCE,
                     NECESSITATING REDUCTION.

We reject these contentions and affirm.

                                        I.

        On May 15, 2011, defendant and his stepdaughter, Mary, 2 were at his

apartment "just hanging out" with music turned up loudly enough that a

conversation could not be heard over it. Defendant became angry that Mary was

talking on the telephone, began "yelling and growling" at her to get off the

phone, and "grabbed [her] like he was just trying to . . . make [her] get off the



2
    This name is fictitious.


                                                                         A-5582-15T3
                                          3
phone." Defendant grabbed Mary by the arm and both "went [down] . . . [into

a] praying position." Mary was on the phone with her mother, Margaret Hunter,3

and was "too scared to get off the phone." Mary told Hunter she was "scared"

and asked her to "come get her." Mary stayed on the phone while Hunter and

Irene were on their way to defendant's apartment. When they arrived at 1:13

p.m., Mary ran from the apartment, passed Irene on the stairway, and left with

Hunter.

        Irene encountered defendant and unplugged the radio playing the loud

music. Defendant became hysterical and began physically assaulting Irene and

choking her. Irene began to pass out as defendant released her. At 1:23 p.m.

Irene ran down the stairs and out of the building. In her recorded statement to

the police, given four or five days after the incident, Irene said:

              At first, [defendant] grabbed by my arm, pulling my
              arm, and after he kept pulling my arm I got away and
              after he saw I was getting away because  ̶̶̶ and then I
              pushed him and then he grabbed me by my neck and he
              caught me right up under here and [held] my neck like
              that.

                    ....

              I was . . . trying to get to the door, which I did, and I
              got to the wall of the stairway right there by where you
              just go up the steps and I was leaning up against it and

3
    Hunter was married to defendant at the time of his first trial.
                                                                          A-5582-15T3
                                          4
            he grabbed me again right there because he let me go
            again and then he grabbed me again and he was holding
            this and cut . . . on this and I was just going down and
            he walked away and went back to his apartment.

            I almost died.

      At approximately 6:20 p.m. on May 15, 2011, Flagler, who lived on the

same floor as defendant, was fatally shot in the doorway of his apartment.

Flagler's girlfriend heard the gunshot and saw Flagler fall into the apartment.

She did not see the shooter, but saw a gun and Flagler's cellphone on the floor

in the hallway.

      The police responded to the scene and found a handgun and a bloody and

broken cellphone in the hallway. When Lieutenant Nick Flora arrived at the

scene, he saw defendant open and close the door to his apartment twice.

Sergeant Thomas McVicar, who knew defendant, arrived at the scene. Flora

knocked on defendant's door with McVicar next to him. When defendant opened

the door, Flora saw he was bleeding from his mouth and had a "blank stare on

his face." Flora also saw blood on the floor of defendant's apartment and a piece

of a cellphone behind defendant. Defendant tried to close the door, but Flora

and McVicar prevented him from doing so.




                                                                         A-5582-15T3
                                        5
       The officers entered defendant's apartment and patted him down.

McVicar administered Miranda4 rights to defendant and then asked him,

"Patrick, what's up with the old man next door." Defendant replied, "Tom, he

came at me with a gun so I shot him." Defendant made "eye contact" with

Detective Amy Hulings, who was now on the scene, and said in her presence,

"Yeah, I shot him, but he came to my house with a gun." The police arrested

defendant and transported him to police headquarters.

       Detective Sergeant Brian Cahill interviewed defendant at approximately

7:45 p.m on May 15, 2011. During his video recorded interview, defendant

began acting in a bizarre manner; he was mumbling and talking low; his

statements were incoherent; and he was howling like a dog and taking his clothes

off and being disruptive. Cahill believed defendant's conduct could have been

a ploy to stop or disrupt the interview, or a tactic to avoid having his voice

recorded.




4
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                        A-5582-15T3
                                       6
                                        II.

        Defendant filed a motion to sever the attempted murder charge from the

murder charge. The motion judge conducted a Cofield5 analysis in denying the

motion. The judge found defendant's conduct toward Irene was relevant to his

state of mind, and was relevant to both the State and to defendant as a potential

defense. The judge found the two incidents occurred close in time and involved

violence. The judge noted this was not a typical N.J.R.E. 404(b) case in which

witnesses are ordinarily called to testify at a hearing because the crimes were

already joined in the indictment. The judge nevertheless found the State would

be able to present clear and convincing evidence that the prior act had been

committed, and said her decision was subject to witnesses testifying at trial. The

judge also found the probative value far outweighed any prejudice to defendant,

and noted the jury would receive an appropriate limiting instruction.

        Defendant concedes that the judge applied the appropriate standards in

denying his motion, but argues the judge erred in finding that evidence of his

conduct toward Irene was relevant to the murder charge because it was probative

of his state of mind. We disagree.



5
    State v. Cofield, 127 N.J. 328, 338 (1991).


                                                                          A-5582-15T3
                                         7
      Rule 3:7-6 allows for two or more offenses to be charged together in the

same indictment "if the offenses charged are of the same or similar character or

are based on the same act or transaction or on [two] or more acts or transactions

connected together or constituting parts of a common scheme or plan." Under

Rule 3:15-1:

             (a) Permissible Joinder. The court may order [two] or
             more indictments or accusations tried together if the
             offenses and the defendants, if there are [two] or more,
             could have been joined in a single indictment or
             accusation . . . .

             (b) Mandatory Joinder. Except as provided by R. 3:15-
             2(b), a defendant shall not be subject to separate trials
             for multiple criminal offenses based on the same
             conduct or arising from the same episode, if such
             offenses are known to the appropriate prosecuting
             officer at the time of the commencement of the first trial
             and are within the jurisdiction and venue of a single
             court.

             [(Emphasis added).]

Finally, under Rule 3:15-2(b), "[i]f or any other reason it appears that a

defendant or the State is prejudiced by a permissible or mandatory joinder of

offenses . . . in an indictment . . . the court may order an election or separate

trials of counts[.]"

      We review a court's ruling on a severance motion for abuse of discretion.

State v. Chenique-Puey, 145 N.J. 334, 341 (1996). The decision whether to deny

                                                                          A-5582-15T3
                                         8
defendant's motion to sever counts at trial "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). Thus, the "[d]enial of such a motion will not be reversed in

the absence of a clear showing of a mistaken exercise of discretion." State v.

Krivacska, 341 N.J. Super. 1, 38 (App. Div. 2001).

      In ruling on a motion to sever, the court should consider the potential harm

to the defendant, as well as the need for judicial economy and expediency. State

v. Coruzzi, 189 N.J. Super. 273, 297 (App. Div. 1983). The key to determining

whether joinder is prejudicial to a defendant is whether, if the crimes were tried

separately, evidence of the severed offenses would be admissible under N.J.R.E.

404(b) in the trial of the remaining charges. Chenique-Puey, 145 N.J. at 341.

"If the evidence would be admissible at both trials, then the trial court may

consolidate the charges because 'a defendant will not suffer any more prejudice

in a joint trial than he would in separate trials.'" Ibid. (quoting Coruzzi, 189 N.J.

Super. at 299).

      N.J.R.E. 404(b) provides, in pertinent part, that:

             evidence of other crimes, wrongs, or acts is not
             admissible to prove the disposition of a person in order
             to show that such person acted in conformity therewith.
             Such evidence may be admitted for other purposes,
             such as proof of motive, opportunity, intent,
             preparation, plan, knowledge, identity or absence of

                                                                             A-5582-15T3
                                         9
            mistake or accident when such matters are relevant to a
            material issue in dispute.

The courts use a four-pronged test to determine the admissibility of evidence

under N.J.R.E. 404(b):

            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.

            [Cofield, 127 N.J. at 338 (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)).]

      To satisfy the first prong, the evidence must have "a tendency in reason

to prove or disprove any fact of consequence to the determination of the action."

See N.J.R.E. 401 (defining "relevant evidence"). "Consequently, to be relevant,

the other-crimes evidence must bear on a subject that is at issue at the trial, for

example, an element of the offense or some other factor such as motive,

opportunity, intent, or plan." State v. P.S., 202 N.J. 232, 255 (2010). "In

relevance determinations, the analysis focuses on 'the logical connection


                                                                            A-5582-15T3
                                        10
between the proffered evidence and a fact in issue.'" State v. Williams, 190

N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15

(2004)). Where the fact to be proven is an element of the offense, such as

motive and intent, the relevance prong is satisfied. See State v. Davidson, 225

N.J. Super. 1, 12-13 (App. Div. 1988) (holding that other crimes evidence is

admissible where the State must prove an element of the offense).

      Other crimes evidence may be admissible under N.J.R.E. 404(b) on the

issue of motive. See State v. Collier, 316 N.J. Super. 181, 195 (App. Div. 1998).

"Generally, in 'motive' cases under N.J.R.E. 404(b) . . . the evidence in question

is designed to show why a defendant engaged in a particular, specific criminal

act." State v. Mazowski, 337 N.J. Super. 275, 283 (App. Div. 2001). Thus, in

contrast to pattern evidence, establishing motive does not require similarity

between the other bad acts and the crime charged. Id. at 286 n. 3. Other crimes

evidence may be admissible under N.J.R.E. 404(b) if it discloses the defendant's

mental intention or purpose when he committed the offense or to negate the

existence of innocent intent. State v. J.M., Jr., 438 N.J. Super. 215, 223 (App.

Div. 2014).

      The second prong of the Cofield test is not found in N.J.R.E. 404(b).

Therefore, it "need not receive universal application in [N.J.R.E.] 404(b)


                                                                          A-5582-15T3
                                       11
disputes." Williams, 190 N.J. at 131. Proof of the second prong is not required

in all cases, but only in those that replicate the facts in Cofield, namely, illegal

drug possession, which is not the case here. Id. at 130-31; State v. Carlucci, 217

N.J. 129, 141 (2014).

       The third prong requires clear and convincing proof that the person against

whom the evidence is being used actually committed the other crime or wrong.

Carlucci, 217 N.J. at 143; Cofield, 127 N.J. at 338.

       The fourth prong is typically the most difficult to overcome. State v.

Barden, 195 N.J. 375, 389 (2008). "Because of the damaging nature of such

evidence, the trial court must engage in a 'careful and pragmatic evaluation' of

the evidence to determine whether the probative worth of the evidence is

outweighed by its potential for undue prejudice." Ibid. The analysis incorporates

balancing prejudice versus probative value as required by N.J.R.E. 403, but does

not require, as does N.J.R.E. 403, that the prejudice substantially outweigh the

probative value of the evidence. State v. Reddish, 181 N.J. 553, 608 (2004). The

risk of undue prejudice must merely outweigh the probative value. A "very

strong" showing of prejudice is required to exclude motive evidence under this

prong. State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008).




                                                                            A-5582-15T3
                                        12
      Under the fourth prong, the trial court must also consider if other less

prejudicial evidence may be presented to establish the same issue on which the

other crimes or wrongs evidence was offered. P.S., 202 N.J. at 256. In addition,

in order to minimize "the inherent prejudice in the admission of other-crimes

evidence, our courts require the trial court to sanitize the evidence when

appropriate." Barden, 195 N.J. at 390. Finally, the trial court must provide a

limiting instruction, both when the evidence is presented and in the final

instructions, to inform the jury of the purposes for which it may and may not

consider the evidence of defendant's uncharged misconduct. Ibid.

      Under the facts presented here, the judge did not abuse her discretion in

denying defendant's motion to sever the attempted murder charge from the

murder charge. The judge conducted a Cofield analysis and found the relevant

factors had been met. As to the first Cofield factor, the judge determined that

defendant's conduct toward his mother was clearly probative of his mental state

on the date in question, and defendant's state of mind was relevant both to the

State and to defendant as a potential defense. As to the third factor, the judge

found the State would be able to prove by clear and convincing evidence that

defendant committed the prior act. The judge noted that, in order to prove the

attempted murder charge, the State would have to call defendant's mother to


                                                                        A-5582-15T3
                                      13
testify at trial, and the testimony would be direct evidence of defendant's guilt.

As to the fourth factor, the judge found that the probative value of the evidence

substantially outweighed by any prejudice to defendant, and noted the jurors

would receive a limiting instruction about the evidence.       We conclude the

judge's reasoning is sound and discern no reason to reverse her denial of

defendant's motion to sever.

                                       III.

      Defendant challenges his sentence in Point II. He does not dispute that

the number of his prior convictions rendered him eligible for an extended -term

sentence under N.J.S.A. 2C:44-3(a). Rather, he argues the judge failed to

consider the entire range of sentences available for a third-degree crime, the

danger to the public, and defendant's exemplary conduct and achievement

between the time of conviction and sentencing. Defendant also challenges the

judge's findings of aggravating and mitigating factors.

      Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127

(2011). We review a judge's sentencing decision under an abuse of discretion

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we

must determine whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the

                                                                          A-5582-15T3
                                       14
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [Ibid. (alteration in original) (quoting State v. Roth, 95
            N.J. 334, 364-65 (1984)).]

      We have considered defendant's arguments in light of the record and

applicable legal principles and conclude they are without sufficient merit to

warrant discussion in a written opinion.         R. 2:11-3(e)(2).        We affirm

substantially for the reasons the judge expressed at sentencing. We are satisfied

that the judge did not violate the sentencing guidelines and the record amply

supports her findings on aggravating and mitigating factors. The sentence is

clearly reasonable and does not shock our judicial conscience.

      Affirmed.




                                                                            A-5582-15T3
                                       15
