The opinion
NOT FOR PUBLICATION WITHOUT THE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-1589-24
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
OTWAY K. GARLAND,
Defendant-Respondent/
Cross-Appellant.
_____________________________
Argued November 12, 2025 – Decided December 10, 2025
Before Judges Gilson and Vinci.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Essex County,
Indictment No. 24-11-2439.
Frank J. Ducoat, Deputy Chief Assistant Prosecutor,
argued the cause for appellant/cross-respondent
(Theodore N. Stephens II, Essex County Prosecutor,
attorney; Hannah Faye Kurt, Assistant Prosecutor, of
counsel and on the briefs).
Stefan Van Jura, Assistant Deputy Public Defender,
argued the cause for respondent/cross-appellant
(Jennifer N. Sellitti, Public Defender, attorney;
Rochelle Watson, Assistant Deputy Public Defender, of
counsel and on the brief).
PER CURIAM
Defendant Otway K. Garland was charged in a single indictment with
crimes allegedly committed in connection with the following events: an October
23, 2023 burglary in Newark; October 25, 2023 burglaries in Irvington; and an
October 27, 2023 robbery and subsequent eluding in Irvington. Defendant
moved to sever the charges, seeking three separate trials. On December 19,
2024, the court entered an order granting the motion in part severing the October
27 charges from the October 23 and 25 charges, which would be tried together.
By leave granted, the State appeals from the December 19 order
contending all the charges should be tried together in a single trial. Defendant
cross appeals contending the three sets of charges should be tried separately.
Having considered the record and applicable law, we affirm as modified in this
opinion.
I.
The State alleges that on October 23, 2023, defendant burglarized a
business on Ferry Street in Newark, taking two Samsung tablets and
approximately $300 in cash. Black and white surveillance video from inside the
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business showed a male suspect wearing a light-colored hooded sweatshirt,
light-colored pants, and light-colored sneakers. The suspect's face was partially
covered, but he had two visible tattoos on his face and tattoos on the backs of
his hands. The suspect was wearing a chain around his neck. Law enforcement
subsequently identified the suspect as defendant by comparing his recent
photograph in an unrelated matter to the surveillance video.
The State alleges that on October 25, 2023, defendant burglarized the
Valley Mall Plaza on Chancellor Avenue in Irvington and a business located
inside the mall. Law enforcement obtained surveillance video from inside the
mall and the surrounding area. Color surveillance video from the afternoon of
October 24, showed two individuals, one of whom was later identified as
defendant, driving into the mall parking lot in a blue 2020 GMC Terrain with
New Jersey registration G7*RU* (the GMC Terrain). Law enforcement later
determined the vehicle had been stolen in Jersey City earlier that day.
Defendant exited the driver's side of the vehicle and entered the mall. He
was wearing a beige hooded sweatshirt, blue jeans, and white and blue "Air
Jordan 12 Retro" sneakers. On color surveillance video from inside the mall,
defendant was seen "casing the security desk area" and he "removed a black
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handbag from the desk." He then exited the mall, ran back to the GMC Terrain
carrying a black bag, and drove out of the parking lot.
At approximately 11:30 p.m., defendant was seen on color surveillance
video entering the mall wearing the same clothing he was wearing earlier that
day. Defendant was accompanied by an unidentified individual wearing all
black clothing, a black face mask, and black gloves.
Shortly thereafter, defendant was seen on black and white surveillance
video tampering with the door to a business on the second floor of the mall using
a machete. He gained entry and removed $750 from three cash registers.
Defendant's hand tattoos were clearly visible as he removed cash from the
registers and, at one point, he looked up providing a clear image of his face and
facial tattoos. He was wearing a similar chain and light-colored hooded
sweatshirt and had what appeared to be the same hand and facial tattoos as the
suspect in the October 23 burglary in Newark.
The State alleges that on October 27, 2023, defendant went to a gas station
on Springfield Avenue in Irvington driving the GMC Terrain. Defendant
approached a gas station employee and asked to use his cell phone as a flashlight
to search for something in his vehicle. The gas station employee recognized
defendant from previous interactions with him and agreed.
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Defendant placed the employee's phone in his pocket and got back into
the vehicle. The employee asked for his phone and attempted to open the door.
Defendant punched him in the arm. The employee saw a black handgun in
defendant's right front pocket. Defendant fled in the GMC Terrain. The
employee subsequently identified defendant from a photo array.
A police officer canvassing the area in a police vehicle shortly after the
robbery saw the GMC Terrain and attempted to conduct a motor vehicle stop.
The GMC Terrain fled at a high rate of speed with the officer in pursuit. The
high-speed chase ended in Newark when defendant's vehicle collided with
multiple police vehicles. Defendant and two police officers were injured in the
collision. Defendant was arrested at the scene. When apprehended, defendant
was wearing multiple chains, one of which appeared to be the chain he was
wearing during the October 23 and October 25 burglaries. The phone taken
during the earlier gas station robbery was in the vehicle. Black clothing
matching the clothing worn by the unidentified individual with defendant on
October 25 was also located in the vehicle.
Defendant was initially charged in three separate indictments. On
November 22, 2024, an Essex County grand jury returned a twenty-count
superseding indictment charging defendant as follows: (1) counts one through
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five relate to the October 23 burglary and charge third-degree conspiracy to
commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2; third-degree burglary,
N.J.S.A. 2C:18-2; third-degree theft, N.J.S.A. 2C:20-3(a); fourth-degree
possession of burglary tools, N.J.S.A. 2C:5-5(a)(1); and fourth-degree criminal
mischief, N.J.S.A. 2C:17-3(a)(1); (2) counts six through nine relate to the
October 25 burglaries and charge two counts of third-degree burglary, N.J.S.A.
2C:18-2; fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d); and third-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);
(3) counts ten through twenty relate to the robbery and eluding on October 27
and charge first-degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree eluding,
N.J.S.A. 2C:29-2(b); third-degree receiving stolen property, N.J.S.A. 2C:20-
7(a); fourth-degree obstruction, N.J.S.A. 2C:29-1; third-degree resisting arrest,
N.J.S.A. 2C:29-2(a)(3)(a); fourth-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(d); and second-degree aggravated
assault, N.J.S.A. 2C:12-(1)(b)(6).
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On December 11, 2024, following oral argument on defendant's motion to
sever, the court granted the motion in part supported by an oral opinion. The
court was "satisfied that . . . defendant . . . raised some serious concerns that
require severance as to the burglaries from the events of October 27[] which are
the robbery of the gas station attendant and the eluding." The court concluded:
the only common thread is the unlawful taking of
property. In the [c]ourt's view, there is a serious risk
that this will be presented or perceived, even if that is
not the overt presentation . . . of the prosecution, that
this is a crime spree perpetrated by one person and an
unknown individual or individuals.
[T]his creates a risk that the prejudice will
outweigh the probative value of the linkage of these
events. And . . . there is a risk that . . . defendant
would be simply seen as a bad guy by the jury. And
that is inappropriate under both the court rules and the
case law.
The court was "satisfied that the two burglaries [on October 23 and 25
could] be linked on one indictment. They [were] basically a day apart. They
involve forced entry into a commercial premises . . . [and] the taking of property
from that premises." The court found "under [N.J.R.E.] 404[(b),] that elements
of what is sometimes known as the mimic rule are met here. In particular[]
intent, absence of mistake[,] and common scheme o[r] plan" and the October 23
and 25 charges "should be tried together."
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On December 19, the court entered a conforming order. 1 On January 31,
2025, we granted the State's motion for leave to appeal.
II.
On appeal, the State raises the following point for our consideration.
THE TRIAL COURT ABUSED ITS DISCRETION IN
GRANTING SEVERANCE.
On cross-appeal, defendant raises the following point for consideration.
THE TRIAL COURT'S DENIAL OF SEVERANCE OF
THE OCTOBER 23 AND 25 BURGLARIES
CONSITUTED ERROR BECAUSE THE SECOND
BURGLARY OFFERS NO PROBABTIVE VALUE IN
IDENTIFYING THE PERPETRATOR FROM THE
OBSCURED SURVEILLANCE FOOTAGE OF THE
FIRST BURGLARY.
We are satisfied the court correctly denied defendant's motion to sever the
October 23 and 25 charges and ordered that those charges be tried together. We
do not find any basis to conclude the court misapplied its discretion by severing
the October 27 charges for a separate trial. Nevertheless, we conclude the State
should be permitted to introduce a "sanitized" version of the events of October
1
The order incorrectly refers to severance of counts eleven through nineteen
instead of counts ten through twenty. It is clear the court intended to sever
counts ten through twenty from counts one through nine.
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27, to establish defendant's identity in connection with the October 23 and 25
burglaries.
"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) (citing State v. Laws, 50 N.J. 159, 175 (1967)). We
defer to the trial court's decision on a severance motion unless it constitutes an
abuse of discretion. State v. Weaver, 219 N.J. 131, 149 (2014) (citing State v.
Sanchez, 143 N.J. 273, 283 (1996)).
Rule 3:7-6 permits the State to charge multiple offenses in a single
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." "Although joinder is favored, economy and efficiency
interests do not override a defendant's right to a fair trial." State v. Sterling, 215
N.J. 65, 72 (2013).
Rule 3:15-2(b) provides:
[i]f for any . . . reason it appears that a defendant . . . is
prejudiced by a permissible or mandatory joinder of
offenses . . . in an indictment . . . the court may
order . . . separate trials of counts . . . or direct other
appropriate relief.
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"Charges need not be identical to qualify as 'similar' for purposes of
joinder under [Rule] 3:7-6." Sterling, 215 N.J. at 91. Rather, all that is required
is "some connection between separate counts rendering the evidence probative
of a material issue in another charge." Ibid. "The test is whether the evidence
from one offense would have been admissible N.J.R.E. 404(b) evidence in the
trial of the other offense[.] . . ." Id. at 98. "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.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting
State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)).
N.J.R.E. 404(b)(1) to (2) provides, in pertinent part:
[E]vidence of other crimes, wrongs, or acts is not
admissible to prove a person's disposition in order to
show that on a particular occasion the person acted in
conformity with such disposition.
This evidence may be admitted for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.
To be admissible:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
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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.
[State v. Cofield, 127 N.J. 328, 338 (1992) (footnote
and citation omitted).]
"The first prong requires that 'the evidence of the prior bad act, crime, or
wrong . . . be relevant to a material issue that is genuinely disputed.'" State v.
Willis, 225 N.J. 85, 98 (2016) (quoting State v. Covell, 157 N.J. 554, 564-65
(1999)). Stated differently, "[t]o avoid prejudicial joinder, the court must
conclude . . . 'the evidence of other crimes or bad acts [is] relevant to prove a
fact genuinely in dispute and the evidence is necessary as proof of the disputed
issue.'" State v. Smith, 471 N.J. Super. 548, 567 (App. Div. 2022) (second
alteration in original) (quoting Sterling, 215 N.J. at 73).
"[E]vidence of a later crime may be admitted on the issue of identity when
defendant's connection to the first crime was established by specific evidence
discovered during the second crime." Sterling, 215 N.J. at 92. For example, we
previously upheld the admission of evidence from a prior robbery to prove
identity in a murder case because the defendant in both crimes used a distinctive
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fake mustache as part of his disguise. State v. Porambo, 226 N.J. Super. 416,
423-24 (App. Div. 1988). Similarly, in State v. Sempsey, we upheld admission
of evidence from other assaults to prove identity where the assailant in each
incident used a distinctive disguise and employed the same unusual method of
attack. 141 N.J. Super. 317, 323-24 (App. Div. 1976).
The second and third prongs of the Cofield test are self-explanatory. The
fourth prong of the Cofield test "is generally the most difficult part of the test[,]"
and requires careful consideration. State v. Barden, 195 N.J. 375, 389 (2008).
That prong "requires an inquiry distinct from the familiar balancing required
under N.J.R.E. 403: the trial court must determine only whether the probative
value of such evidence is outweighed by its potential for undue prejudice, not
whether it is substantially outweighed by that potential." State v. Green, 236
N.J. 71, 83-84 (internal citation and emphasis omitted). In performing that
analysis, a court must consider whether the other-crimes evidence is necessary
to prove the fact in dispute or whether other, less prejudicial evidence could be
used to prove the same fact. Barden, 195 N.J. at 389 (citing State v. Jenkins,
178 N.J. 347, 365 (2004)). "All four of these factors must support the admission
of the evidence in question." State v. J.M., Jr., 438 N.J. Super. 215, 221 (App.
Div. 2014) (citing State v. P.S., 202 N.J. 232, 255 (2010)).
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We are persuaded prong one of the Cofield test is satisfied here. Evidence
of the October 25 burglaries is relevant and material to the identification of
defendant as the perpetrator of the October 23 burglary. The surveillance videos
of the burglaries show the perpetrator's distinctive tattoos on his face and hands.
During the October 23 burglary, however, the perpetrator's face was partially
obscured by a facial covering. During the October 25 burglaries, the
perpetrator's face was fully exposed, and he looked directly into the camera
providing a clear image of his face and facial tattoos. In addition, the perpetrator
was wearing a similar light-colored hooded sweatshirt and chains during both
burglaries.
Evidence of the October 27 robbery and eluding is also relevant and
material to prove defendant's identity as the person who committed the October
23 and 25 burglaries. Defendant was driving the same GMC Terrain on October
27 that he drove to the mall on October 25, and he was arrested at the scene of
the October 27 accident in that vehicle. His identity as the driver of the GMC
Terrain on October 27 is highly probative evidence to demonstrate defendant's
identity as the perpetrator of the October 25 burglaries and, in turn, that he was
also the perpetrator of the October 23 burglary. Defendant was also wearing
chains when he was arrested on October 27 that were similar to those seen in the
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surveillance videos of the October 23 and 25 burglaries. In addition, he was in
possession of black clothing that matched the outfit worn by the unidentified
individual with defendant on October 25.
Prongs two and three of the Cofield test are easily satisfied here. All the
crimes were committed within days of each other and are supported by reliable
evidence.
We do not find any basis to disturb the court's analysis of prong four of
the Cofield test. The October 27 charges include allegations that defendant
caused a motor vehicle accident that injured two police officers and that he
committed a robbery while in possession of a handgun. We are persuaded the
court correctly determined that trying the October 27 charges together with the
burglary charges would create a significant likelihood the jury would convict
defendant of all the crimes charged "because he was a bad person, and not on
the basis of the actual evidence adduced against him." State v. Rose, 206 N.J.
141, 164 (2011). The court properly exercised its discretion to sever counts one
through nine from counts ten through twenty and try counts one through nine in
a single trial.
We are convinced, however, during the trial on counts one through nine,
the State should be permitted to introduce evidence that: (1) on October 27
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defendant was driving the same GMC Terrain he was seen driving into the mall
parking lot on October 25; (2) defendant was wearing chains similar to those
seen in the surveillance videos of the burglaries when he was arrested on October
27; and (3) the black clothing was located in the vehicle when defendant was
arrested.
As discussed previously, that evidence is relevant and material to identity
and satisfies prongs one, two, and three of the Cofield test. We are convinced
prong four of the Cofield test is also satisfied if the evidence is introduced
without reference to the charges contained in counts ten through twenty of the
indictment, and subject to an appropriate N.J.R.E. 404(b) limiting instruction
regarding the permitted use of the evidence. Allowing the State to introduce a
sanitized version of the evidence from October 27 will balance the State's right
to present relevant and highly probative evidence of identity against defendant's
right to a fair trial.
Affirmed as modified. Remanded for proceedings in conformity with this
opinion. We do not retain jurisdiction.
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