                                NOT FOR PUBLICATION WITHOUT THE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-1904-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDREW T. ALSTON, a/k/a
DEAN TYLER, CURTIS
LIVINGSTON, ANDREW T.
AUSTIN, TYRONE JONES,
TYRONE AUSTIN, and
TYRONE LIVINGSTON,

     Defendant-Appellant.
__________________________

                   Submitted March 11, 2020 – Decided April 6, 2020

                   Before Judges Fuentes, Haas and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment Nos. 17-04-0187
                   and 17-04-0189.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michael Timothy Denny, Assistant Deputy
                   Public Defender, on the brief).
             Angelo J. Onofri, Mercer County Prosecutor, attorney
             for respondent (William Andrew Haumann, Assistant
             Prosecutor, on the brief).

PER CURIAM

      Defendant Andrew T. Alston appeals from a December 8, 2017 order

denying his motion for severance. He also appeals from the trial court's failure

to consider mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), during

sentencing. We affirm the order denying the motion to sever but remand to the

trial court for resentencing.

      Under indictment 17-04-0187, defendant, along with four co-defendants,

including Ronderrick Manuel, was charged with the following: first-degree

felony murder; first-degree robbery; two counts of second-degree possession of

a weapon for an unlawful purpose; and second-degree unlawful possession of a

weapon. Manuel was also charged under this indictment with two counts of

first-degree murder. In a separate, unrelated indictment under 17-04-0189,

defendant was charged with various drug-related offenses, second-degree

handgun possession charges based on the certain persons statute , and second-

degree possession of a handgun while committing a drug-related offense.




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      According to the State, the five defendants plotted to rob a specific

individual. The planned robbery went awry and another person, not the target

of the intended robbery, was shot and killed.

      Defendant gave a recorded statement to police after the shooting. In his

statement, defendant said he was in his apartment on the evening of the planned

robbery. He was unable to tell the police who was in the apartment at that time,

except to state "people" were coming in and out of the apartment.           Co-

defendants, not including Manuel, also gave statements to the police regarding

the failed robbery. Co-defendants' statements inculpated defendant and Manuel

in the crimes and identified Manuel as the shooter.

      The State filed a motion to sever the trials of all defendants, except

defendant and Manuel. Defendant filed a motion to sever his trial from all

defendants, including Manuel.

      The judge granted the State's motion, finding the statements of the three

co-defendants could not be redacted effectively, requiring their trials to be

separate from the trial of defendant and Manuel.       The judge then denied

defendant's motion to sever his trial from that of Manuel, determining that

defendant's statement to the police did not violate his Confrontation Clause

rights.


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                                       3
      In reaching her decision, the judge reviewed defendant's recorded

statement to the police and a written transcription of that statement. Based on

her review, the judge concluded "there is no Bruton1 issue posed by the

admission of defendant Alston's statement . . . ." Because Manuel never gave a

statement to the police, defendant was objecting to his own statement which did

not raise a Bruton issue. The judge rejected defendant's argument that his own

statement to the police regarding "people" coming through or being in the

apartment on the night of the failed robbery was inferentially incriminating. She

found "at no time during Alston's statement does he mention Manuel being

involved, or even being one of the people at his apartment that night."

      After denial of his motion to sever, defendant pleaded guilty to robbery

under indictment 17-04-0187 and the certain persons charge under indictment

17-04-0189 in exchange for dismissal of the remaining counts in both

indictments. The plea agreement contained the following handwritten notation:

"Cooperation on Ind. #17-04-0187 including truthful statement/testimony at

trial." As part of the plea colloquy, the State informed the judge that defendant



1
  Bruton v. United States, 391 U.S. 123 (1968) (holding the Sixth Amendment
right to confront witnesses precluded a court from admitting into evidence at a
joint trial a co-defendant's out-of-court statement implicating the defendant in
the crime).
                                                                          A-1904-18T3
                                       4
"agreed to fully cooperate against any remaining co[-]defendants in Indictment

17-04-0187, including truthful testimony at trial, if necessary." During the plea

hearing, the judge reviewed with defendant the issue of cooperation. She told

defendant,   "the   State    is   recommending   that   in   exchange   for   that

recommendation, they're requiring that you cooperate . . . [a]nd cooperation

would include giving truthful testimony at the trial of any co[-]defendants who

did not resolve by way of a plea. You understand that?"

      The judge sentenced defendant in accordance with the plea agreement to

sixteen years in prison for robbery, subject to an eighty-five percent parole

disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, concurrent to

a seven-year term of imprisonment with a five-year period of parole ineligibility

on the certain persons charge. The judge found aggravating factors three, six,

and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and found no mitigating factors,

N.J.S.A. 2C:44-1(b).        Mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12),

cooperation with law enforcement, was not mentioned by defendant, his counsel,

or the sentencing judge.

      On appeal, defendant raises the following arguments:

      POINT I

             THE TRIAL COURT ERRED BY DENYING THE
             SEVERANCE MOTION AND ADMITTING THE

                                                                         A-1904-18T3
                                        5
            DEFENDANT'S  UNREDACTED    STATEMENT
            WHEREIN HE MAKES REFERENCES TO A
            NONTESTIFYING CO[-]DEFENDANT THEREBY
            VIOLATING HIS CONFRONTATION CLAUSE
            RIGHTS.

      POINT II

            THE SENTENCING COURT ERRED BY FAILING
            TO CONSIDER MITIGATING FACTOR 12,
            WILLINGNESS TO COOPERATE WITH LAW
            ENFORCEMENT, DESPITE IT BEING CLEARLY
            INDICATED BY THE RECORD.

      The law governing a severance motion is clear. "Two or more defendants

may be tried jointly '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.'" State v. Brown, 170 N.J. 138, 159-60 (2001) (quoting R. 3:7-7).

Courts generally prefer to try co-defendants jointly, "particularly when 'much of

the same evidence is needed to prosecute each defendant.'" Id. at 160 (quoting

State v. Brown, 118 N.J. 595, 605 (1990)). "That preference is guided by a need

for judicial efficiency, to accommodate witnesses and victims, to avoid

inconsistent verdicts, and to facilitate a more accurate assessment of relative

culpability." Ibid.

      A single joint trial, however, may not take place at the expense of a

defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996).


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                                       6
When considering a motion for severance, a trial court should "balance the

potential prejudice to defendant's due process rights against the State's interest

in judicial efficiency." Brown, 118 N.J. at 605 (quoting State v. Coleman, 46

N.J. 16, 24 (1965)). Trial courts apply a rigorous test for granting severance.

Brown, 170 N.J. at 160. A mere claim of prejudice is insufficient to support a

motion to sever. State v. Moore, 113 N.J. 239, 274 (1988). A defendant does

not have the right to severance simply because he or she believes a separate trial

"would offer defendant a better chance of acquittal." State v. Johnson, 274 N.J.

Super. 137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super.

225, 231 (App. Div. 1975)).

      Our review of a motion to sever is limited. The decision to sever rests

within the trial court's discretion. State v. Weaver, 219 N.J. 131, 149 (2014).

We defer to the trial court's decision on a severance motion unless it constitutes

an abuse of discretion. Ibid.

      Here, the statement to which defendant objected was his own statement to

the police, not a statement by a non-testifying co-defendant that might trigger

application of Bruton. Defendant never mentioned Manuel during his recorded

statement and defendant may explain his statement at the time of trial if he so

chooses. The potential risk of guilt by association exists in every joint trial and,


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                                         7
standing alone, did not justify severance in this case. See Brown, 170 N.J. at

162. Because Bruton is inapplicable, the trial judge did not abuse her discretion

in denying defendant's motion to sever.

      We next consider the judge's omission of mitigating factor twelve, "[t]he

willingness of the defendant to cooperate with law enforcement authorities,"

N.J.S.A. 2C:44-1(b)(12), during sentencing. The State does not dispute that

defendant agreed to cooperate with the prosecution as part of his plea agreement.

The State concedes the judge did not address mitigating factor twelve during the

sentencing hearing and that factor was not mentioned in the judgments of

conviction.

      Having reviewed the record, mitigating factor twelve is supported by

defendant's plea agreement and should have been considered by the judge at

defendant's sentencing. See State v. Dalziel, 182 N.J. 494, 505-06 (2005). As

a result, we remand the matter to the trial court for resentencing. We take no

position on the weight to be given by the trial court to mitigating factor twelve

at the resentencing.

      Affirmed in part and remanded in part. We do not retain jurisdiction.




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