STATE OF NEW JERSEY VS. HOWARD L. DUNNS (13-09-2433, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0481-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD L. DUNNS, a/k/a HOWARD

LAMONT DUNNS, CLARENCE DUNNS,

MICHAEL HOARN, ROBERT JONESY,

LAMONT NEWPORT and ROBERT JONES,

Defendant-Appellant.

____________________________

Submitted September 25, 2017 – Decided June 29, 2018

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

13-09-2433.

Joseph E. Krakora, Public Defender, attorney

for appellant (Robert C. Pierce, Designated

Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor,

attorney for appellant (John J. Lafferty, IV,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Howard L. Dunns appeals his conviction and sentence

for two counts of burglary and one count of kidnapping. Defendant

entered conditional pleas of guilty to the offenses, reserving his

right to challenge the court's denial of his motion to sever four

charges related to a robbery and kidnapping from the remaining

thirty charges in the indictment concerning eight separate

residential burglaries. We reverse the court's order denying

defendant's severance motion, vacate defendant's conviction and

sentence, and remand for further proceedings consistent with this

opinion.

I.

Defendant and his codefendant Fred D. Mosley were charged in

an indictment with thirty-four offenses arising out of eight

residential burglaries and a robbery and kidnapping occurring in

Atlantic County between November 20, 2012, and February 1, 2013.

The thirty-fifth count of the indictment charged co-defendant

Nicole Cumens with third-degree conspiracy to commit burglary and

theft, N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-1 and N.J.S.A. 2C:20-3.

Thirty counts of the indictment charged defendant and Mosley

with offenses arising from eight residential burglaries, including

eight counts of third-degree burglary, N.J.S.A. 2C:18-2, one count

of fourth-degree theft, N.J.S.A. 2C:20-3, five counts of third-

degree theft, N.J.S.A. 2C:20-3, eight counts of fourth-degree

2 A-0481-15T1

criminal mischief, N.J.S.A. 2C:17-3(a)(1), and eight counts of

third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:18-2.

Four counts of the indictment alleged offenses arising out

of a January 25, 2013 kidnapping and robbery at A.B.'s1 residence:

first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count twenty-one);

second-degree robbery, N.J.S.A. 2C:15-1 (count twenty-two);

fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count

twenty-three); and second-degree conspiracy to commit kidnapping

and robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:13-1(b) and N.J.S.A.

2C:15-1 (count twenty-four). Defendants were not charged with

burglary, N.J.S.A. 2C:18-2(a), in connection with the incident at

A.B.'s residence.

Defendant moved to sever counts twenty-one through twenty-

four from the thirty burglary-related charges. The State opposed

the motion and moved to join unindicted burglary and theft charges

that were pending against defendant and Mosley in Gloucester County

with the charges in the indictment or, in the alternative, to

permit the State to introduce evidence at trial concerning the

Gloucester County charges under N.J.R.E. 404(b).

1

We use the victim's initials to protect her privacy.

3 A-0481-15T1

The evidence before the motion court consisted of the grand

jury testimony of New Jersey State Police Detective John Hannigan

explaining the investigation, and generally describing the

burglaries and the robbery and kidnapping. Hannigan testified

that on November 20, 2012, a residential burglary occurred in

Buena Vista. The perpetrator(s) broke through a rear door of the

residence and stole jewelry from the unoccupied home.

On November 21, 2012, another Buena Vista residence was

burglarized. A neighbor saw a grey Chevrolet Suburban pull into

the driveway and two men walk up a handicap ramp to the house.

The perpetrators broke through the rear door of the residence and

stole jewelry.

On January 8 and 9, 2013, burglaries involving broken rear

doors and the theft of valuables occurred at separate Buena Vista

residences. On January 19, 2013, a burglary occurred when a cinder

block was thrown through a rear window and valuables were stolen

from another Buena Vista residence.

On January 25, 2013, eighty-five-year-old A.B. awoke to noise

in the family room of her Buena Vista residence. She confronted

two men, who bound her hands and feet with a telephone cord and

asked her for money. The perpetrators went through the home,

stole jewelry and fled the scene, leaving the bound A.B. behind.

A.B. was found four hours later by her son. The rear exterior

4 A-0481-15T1

door had been kicked in and the police recovered from the door

what they suspected was a footprint from one of the perpetrators.

On January 29 or 30, 2013, a residence in Franklin Township

in Gloucester County was burglarized. A neighbor unsuccessfully

attempted to block a gold Volkswagen Jetta from leaving the scene.

The neighbor gave the vehicle's license plate number to the police.

The Volkswagen Jetta was leased from a Delaware car leasing store

to Mosley's girlfriend, co-defendant Nicole Cumens. The police

determined the grey Chevy Suburban identified by witnesses to the

November 21, 2012 burglary was owned by Cumens.

On February 1, 2013, the New Jersey State Police surveilled

Cumens's Delaware residence and the car leasing store. They were

advised three new burglaries involving kicked-in rear doors were

reported in Buena Vista that day.

A gold Volkswagen bearing the same license plate seen at the

January 29, 2013 burglary arrived at Cumens's residence. Mosley

exited the vehicle and entered Cumens's home. Detectives later

arrested Mosley when he exited the home.

The police later learned a fourth residential burglary took

place on February 1, 2013, in Gloucester County. A surveillance

recording showed defendant and Mosley inside and outside of the

residence during the burglary. Defendant and Mosley were charged

with the burglary in Gloucester County.

5 A-0481-15T1

When Mosley was arrested, the police recovered a phone from

his pocket and two phones from his vehicle. The phones were

unregistered "burner phones." Analysis of one of the phones showed

it was used to make phone calls to the residences immediately

prior to the burglaries and the kidnapping and robbery between

January 19, 2013 and February 1, 2013. Data showed the phone was

used to make numerous calls to the residences on the days the

crimes charged in the indictment were committed.

Data retrieved from the phone found in Mosley's pocket showed

it was used to make multiple calls to the homes burglarized on

November 20 and 21, 2012, just prior to the burglaries. Other

data showed multiple phone calls were made to the homes burglarized

between December 26, 2012 and January 19, 2013, just prior to the

burglaries.

In Mosley's vehicle, the police found ski masks, multiple

pairs of shoes, black gloves, Western Union receipts and the

homeowner's belongings from one of the February 1, 2013 burglaries.

A shoe recovered from the vehicle matched the shoe print found on

the rear door of A.B.'s home. During the investigation, evidence

recovered from a Philadelphia pawn shop showed defendant and Mosley

pawned jewelry stolen during the November 2012 burglaries.

Months after his arrest, Mosley gave a statement describing

the commission of the crimes. He explained that he and defendant

6 A-0481-15T1

obtained "burner phones" which they first used to obtain the phone

numbers of the residences, including A.B.'s home. They called the

residences multiple times to determine if anyone was home. If

their calls were unanswered, they kicked in the rear doors, and

burglarized the homes to steal valuables, primarily targeting

jewelry.

Mosley explained he drove the Volkswagen Jetta on January 25,

2013 when A.B. was robbed and kidnapped. According to Mosley, he,

defendant and a person he identified as T.T.2 drove by A.B.'s

house, made phone calls to the home and received no answer. Mosley

said defendant and T.T. went to the rear of the residence, kicked

in the back door, went inside and made contact with the homeowner.3

Mosley said defendant and T.T. tied up A.B. and took her

belongings.

When defendant was arrested, he was in possession of a cell

phone. Hannigan generally described that the data from defendant's

2

We use initials to protect the privacy of anyone sharing the

name of the individual Mosley said committed the crimes. The

individual named was never arrested or charged, and there is no

other evidence in the record showing the person Mosley named

committed any of the offenses.

3

Mosley's statement contradicted the physical evidence recovered

at the scene. The shoe print recovered from the rear door matched

the tread pattern of a sneaker from Mosley's car, and Mosley

admitted the sneaker was his.

7 A-0481-15T1

phone showed text messages between him and Mosley on the dates of,

or just prior to, the January 2013 offenses. In the messages,

defendant and Mosley communicated about when they intended to meet

and whether the other wanted to "work" on particular days.

The judge denied the State's motion for joinder of the

unindicted Gloucester County charges with the Atlantic County

indictment because defendant had not been indicted on the

Gloucester County charges. The judge further determined that

subject to holding a N.J.R.E. 104 hearing, evidence concerning the

Gloucester County burglaries was admissible under N.J.R.E. 404(b)

in the trial of the charges in the indictment.

The court denied defendant's motion to sever counts twenty-

one through twenty-four, which charged offenses arising out of the

robbery and kidnapping of A.B. Relying solely on Hannigan's grand

jury testimony, the court determined the evidence showed the

robbery and kidnapping were committed in a manner so similar to

the commission of the residential burglaries that it established

defendant's identity as a perpetrator. The court concluded that

evidence concerning the robbery and kidnapping was otherwise

admissible under N.J.R.E. 404(b) to prove defendant's identity as

a perpetrator of the burglaries and, as a result, severance of the

four counts was not required.

8 A-0481-15T1

Seven months later, Mosley pleaded guilty to two counts of

burglary and one count of kidnapping pursuant to a plea agreement.

Mosley agreed to testify against defendant.

Defendant subsequently pleaded guilty to three counts of

burglary and one count of kidnapping. The State agreed to

recommend a sentence not to exceed nineteen years subject to the

requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.1. Defendant's plea was conditioned on his right to appeal the

denial of his severance motion.

Defendant was sentenced to an aggregate nineteen-year

custodial term, and ordered to pay $30,803.45 in restitution at

the rate of $100 per month following his release. This appeal

followed.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S]

MOTION TO SEVER THE KIDNAPPING AND RELATED

CHARGES CONTAINED IN COUNTS 21-24 OF THE

INDICTMENT FROM THE REMAINING 21 COUNTS THAT

DEALT WITH SEVEN OTHER BURGLARIES.[4]

POINT II

THE SENTENCE IMPOSED UPON [DEFENDANT] IS

UNLAWFUL BECAUSE THE TRIAL COURT IMPROPERLY

ORDERED THE REPAYMENT OF RESTITUTION AND

4

As noted, the indictment actually includes thirty charges

related to the eight burglaries, and four charges arising from the

robbery and kidnapping at A.B.'s residence.

9 A-0481-15T1

INCLUDED A STATEMENT IN THE JUDGMENT OF

CONVICTION THAT THE TRIAL COURT "DOES NOT

CONSENT TO A REDUCTION OF THE PRIMARY PAROLE

ELIGIBILITY DATE PURSUANT TO N.J.S.A. 30:4-

123.67."

II.

We first address defendant's contention that the court erred

by denying his motion to sever counts twenty-one through twenty-

four from the remaining counts, which allege offenses arising out

of the eight residential burglaries. Defendant argues the evidence

before the motion court did not establish the commission of

"signature crimes" and therefore the court erred by finding

evidence showing the commission of the robbery and kidnapping was

admissible under N.J.R.E. 404(b) to prove defendant's identity as

a perpetrator of the other offenses charged in the indictment.

The State contends severance was not required because evidence

showing defendant committed the robbery and kidnapping was

otherwise admissible to prove defendant's identity as a

perpetrator of the thirty other offenses charged in the indictment.

Where multiple criminal charges in an indictment are "based

on the same conduct or aris[e] from the same episode," mandatory

joinder of the charges is required. R. 3:15-1(b). Relief from

mandatory joinder of charges may be granted in the trial court's

discretion "if a party is prejudiced by their joinder." State v.

Oliver, 133 N.J. 141, 150 (1993).

10 A-0481-15T1

In our review of a trial court's decision permitting two or

more offenses to be tried simultaneously, we "assess whether

prejudice is present, and [the court's] judgment is reviewed for

an abuse of discretion." State v. Sterling, 215 N.J. 65, 73

(2013); accord State v. Chenique-Puey, 145 N.J. 334, 341 (1996).

"The test for assessing prejudice is 'whether, assuming the

charges were tried separately, evidence of the offenses sought to

be severed would be admissible under [N.J.R.E. 404(b)] in the

trial of the remaining charges.'" Ibid. (alteration in original)

(quoting Chenique-Puey, 145 N.J. at 341).

Here, defendant's severance motion required that the court

determine whether evidence concerning the robbery and kidnapping

related charges was admissible under N.J.R.E. 404(b) in the trial

of the indictment's thirty other charges. See Sterling, 215 N.J.

at 73. It is "[t]he admissibility of the evidence in both trials

that renders inconsequential the need for severance." State v.

Davis, 390 N.J. Super. 573, 591 (App. Div. 2007) (citation

omitted).

Because of the dangers that admission of other crimes evidence

presents, "evidence proffered under Rule 404(b) 'must pass [a]

rigorous test.'" State v. Garrison, 228 N.J. 182, 194 (2017)

(quoting State v. Kemp, 195 N.J. 136, 159 (2008)). In State v.

Cofield, 127 N.J. 328, 338 (1992), our Supreme Court established

11 A-0481-15T1

a four-part test for determining the admissibility of other-crime

evidence:

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.

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

Where, as here, the court did not analyze the evidence under the

Cofield test, we review de novo the determination that evidence

is admissible under N.J.R.E. 404(b). Garrison, 228 N.J. at 194;

accord State v. Darby, 174 N.J. 509, 518 (2002).

In making its determination under N.J.R.E. 404(b), the court

relied on Hannigan's grand jury testimony concerning the robbery

and kidnapping and the other crimes charged in the indictment.

The court found the evidence was admissible under N.J.R.E. 404(b)

to prove defendant's identity as a perpetrator of the thirty

burglary-related offenses. We therefore consider whether the

evidence was admissible under the Cofield test to prove defendant's

identity as a perpetrator of the thirty burglary-related charges

in the indictment. See Sterling, 215 N.J. at 73.

12 A-0481-15T1

Under the first prong, evidence is relevant if it makes an

inference more probable and is related to a material issue in

dispute. State v. Rose, 206 N.J. 141, 160 (2011). Here,

defendant's identity as a perpetrator of the offenses charged in

the indictment was a material issue. State v. Henderson, 433 N.J.

Super 94, 108 (App. Div. 2013) (noting the state "bears the burden

of proving identity").

The State argues, and the court appeared to find, the evidence

concerning the robbery and kidnapping proved defendant's identity

as a perpetrator of the burglary-related crimes because all of the

crimes charged in the indictment were signature crimes. There is

a stringent standard for admitting other-crimes evidence to prove

identity where, as here, "the State attempts to link a particular

defendant to a crime on the basis of modus operandi, or a signature

way of committing the crime." Sterling, 215 N.J. at 93; see also

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment

14 on N.J.R.E. 404(b) (2017). A more stringent standard is

required "[b]ecause of the great hazard of prejudice," when other

crime evidence is presented, "particularly when the venture is to

prove identity . . . ." State v. Reldan, 185 N.J. Super. 494, 502

(App. Div. 1982).

To establish the commission of signature crimes, the evidence

must show "the prior criminal activity with which defendant is

13 A-0481-15T1

identified must be so nearly identical in method as to earmark the

crime as defendant's handiwork." State v. Fortin, 162 N.J. 517,

532 (2000) (quoting Reldan, 185 N.J. Super. at 502). The conduct

must be unusual and distinctive, like a signature, and there must

be proof of sufficient facts in both crimes to establish an unusual

pattern. Ibid.; see also State v. Inman, 140 N.J. Super. 510, 516

(App. Div. 1976) (finding admissibility of signature crime

evidence is limited to where the crimes have "been committed by

some novel or extraordinary means or in a peculiar or unusual

manner").

Other-crime evidence, however, is inadmissible to establish

identity where the crimes are not sufficiently similar. Sterling,

215 N.J. at 97. In Sterling, the Court determined that evidence

showing the perpetrators of separate sexual assaults used a condom,

made racial comments and cut the victims' underwear was not

sufficiently "unique, or even unusual," to "rise to the level of

signature elements of a crime." Id. at 97-98. Similarly, in

Reldan, 185 N.J. Super. at 503, we determined that evidence showing

the defendant committed prior offenses by trying to choke his

victims was inadmissible as signature crime evidence to prove his

identity as the perpetrator of two murders where the victims were

strangled with a pantyhose ligature.

14 A-0481-15T1

Here, the evidence showed the robbery and kidnapping and the

burglary-related charges shared some common elements: the

perpetrators called the home phone numbers before forcing entry

through the rear doors, and then stole items. However, we find

nothing in those common elements that is "unusual and distinctive

so as to be like a signature," Sterling, 215 N.J. at 95. In

addition, there were dissimilarities in the commission of the

offenses. For example, the evidence showed the perpetrators did

not use the same means to force open the rear doors in certain

instances, and there was no evidence showing the method used to

force the doors open in others.5

We are therefore not convinced the robbery and kidnapping and

the burglaries charged in the indictment were committed in a

unique, distinctive and identical manner sufficient to satisfy the

"high burden that . . . [is] required when other-crimes evidence

is admitted to prove identity through the use of signature crime

analysis." Id. at 94-95. The evidence did not satisfy the

heightened standard to establish the commission of signature

crimes to prove defendant's identity. See id. at 97-98.

5

The evidence showed that some of the doors were kicked in, one

door was opened by throwing an object threw a window, and there

was no evidence presented showing the method used to open the

doors of some of the residences.

15 A-0481-15T1

The only other evidence establishing defendant's identity as

a perpetrator of the crimes charged in the indictment was

Hannigan's grand jury testimony about Mosley's statements to the

police. As noted, Mosley told the police he and defendant

committed the burglaries, and he was with defendant when defendant

and T.T. broke into A.B.'s home and committed the robbery and

kidnapping. The statements attributed to Mosley support a finding

of admissibility under the under the first prong of the Cofield

test. It is "relevant to a material issue genuinely in dispute"

- defendant's identity. State v. Gillispie, 208 N.J. 59, 86

(2011).

The second Cofield prong, requiring evidence concerning the

robbery and kidnapping be "similar in kind and close in time to

the" other offenses charged, is applicable where identity is at

issue. State v. Carswell, 303 N.J. Super. 462, 470-71 (App. Div.

1997). However, "[t]emporality and similarity of conduct is not

always applicable, and thus not required in all cases." Rose, 206

N.J. at 160; see also State v. Williams, 190 N.J. 114, 131 (2007)

(finding the second prong's "usefulness as a requirement is limited

to cases that replicate the circumstances in Cofield"). We do not

find the second Cofield prong applicable here because, as noted,

there is insufficient evidence showing a similarity in the

commission of the robbery and kidnapping and the other offenses

16 A-0481-15T1

to establish defendant's identity as a perpetrator of the other

offenses.

The third prong requires that the prosecution establish by

"'clear and convincing' evidence" that the other crimes or acts

occurred. Rose, 206 N.J. at 160 (quoting Cofield, 127 N.J. at

338). To satisfy this prong, the State was required to demonstrate

by clear and convincing evidence defendant committed the robbery

and kidnapping. Ibid. The trial court must ordinarily conduct a

N.J.R.E. 104 hearing to "hear the specific content of the other-

crime testimony[,] . . . assess its relevance to an issue in

dispute and its necessity to the proof of that issue" and

"determine whether it finds proof of the other crime to be clear

and convincing." State v. Hernandez, 170 N.J. 106, 127 (2001).

Because the court did not hold a N.J.R.E. 104 hearing, the

evidence showing defendant committed the robbery and kidnapping

was limited to Hannigan's testimony about Mosley's statements to

the police. Although the testimony of an uncorroborated accomplice

may constitute clear and convincing evidence of a defendant's

commission of another crime, id. at 125-26, hearsay does not

support a finding the State proved a defendant's commission of

another crime by clear and convincing evidence, State v. Sheppard,

437 N.J. Super. 171, 201 (App. Div. 2014). Moreover, Mosley's

statements to the police do not constitute clear and convincing

17 A-0481-15T1

evidence that defendant committed the robbery and kidnapping

because the motion court did not assess the statements in a

N.J.R.E. 104 hearing and the statements were unchallenged by cross-

examination. See Hernandez, 170 N.J. at 127 (finding a N.J.R.E.

104 hearing to assess the testimony concerning defendant's

commission of an other-crime was unnecessary because the court was

presented with testimony concerning the commission of the crime

in a separate proceeding where the witness was subject to "tough

cross-examination"). Thus, the motion court lacked, and this

court lacks, any evidentiary basis supporting a finding the State

satisfied its burden under Cofield's third prong. See State v.

Carlucci, 217 N.J. 129, 143 (2014) (finding police officer's

testimony that defendant admitted prior crime was not clear and

convincing evidence of the commission of the crime under Cofield).

Cofield's fourth prong "recognizes that the 'inflammatory

characteristic of other-crime evidence . . . mandates a careful

and pragmatic evaluation by trial courts, based on the specific

context in which the evidence is offered, to determine whether the

probative worth of the evidence outweighs its potential for undue

prejudice.'" State v. Willis, 225 N.J. 85, 99 (2016) (alteration

in original) (quoting State v. Stevens, 115 N.J. 302, 303 (1989));

accord Rose, 206 N.J. at 161.

18 A-0481-15T1

"'[T]he potential for undue prejudice need only outweigh

probative value to warrant exclusion' of other-crime evidence."

Willis, 225 N.J. at 99-100 (quoting State v. Reddish, 181 N.J.

553, 608 (2004)). "[I]f other less prejudicial evidence may be

presented to establish the same issue, the balance in the weighing

process will tip in favor of exclusion." Rose, 206 N.J. at 161

(quoting State v. Barden, 195 N.J. 375, 392 (2008)). "Thus, courts

have interpreted N.J.R.E. 404(b) 'as a rule of exclusion rather

than a rule of inclusion.'" Willis, 225 N.J. at 100 (quoting

State v. Marrero, 148 N.J. 469, 483 (1997)).

The motion court failed to conduct the "careful and pragmatic

evaluation" of the evidence required to determine if the probative

value of the evidence concerning the robbery and kidnapping was

outweighed by its potential prejudice in proving defendant's

identity as a perpetrator of the burglaries. See Willis, 225 N.J.

at 99. The record does not reveal any physical evidence connecting

defendant's alleged commission of the robbery and kidnapping to

the burglary-related offenses or showing he committed those

offenses.6 Again, defendant's alleged commission of the robbery

6

The State argues that defendant was found in possession of "one

of the burner phones" used to call the various homes during the

commission of the offenses. In support of the argument, the State

cites to Hannigan's grand jury testimony. Hannigan, however, did

not testify there was any data retrieved from defendant's phone

19 A-0481-15T1

and kidnapping was shown solely through Hannigan's testimony about

Mosley's statements.

Mosley's statement concerning defendant's alleged commission

of the robbery and kidnapping has no probative value in

establishing defendant's identity as the perpetrator of the other

crimes charged in the indictment. That is, if the burglary-related

charges were tried separately, Mosley's testimony defendant

committed the robbery and kidnapping would not establish

defendant's identity as the perpetrator of the burglaries. The

State does not argue otherwise. The State contends only that

evidence concerning the robbery and kidnapping is probative of

defendant's identity because the crimes charged in the indictment

are signature crimes. As noted, we find no support in the record

for that position.

In addition to Hannigan's testimony about Mosley's

statements, Hannigan explained the phones found in Mosley's

possession were used to call all of the residences prior to the

commission of the crimes charged in the indictment. It might be

argued Mosley's statement that defendant was a perpetrator of all

showing it was used to call A.B.'s residence or any of the

residences where the burglaries were committed. Hannigan

testified only that the phones recovered from Mosley were used to

call the various residences.

20 A-0481-15T1

of the offenses, and the data retrieved from the phones, establish

defendant's identity by connecting him to the commission of all

of the crimes charged in the indictment.

Even if viewed in that manner, however, evidence concerning

the robbery and kidnapping is only minimally probative of

defendant's identity as a perpetrator of the burglaries because

it is duplicative and cumulative. State v. Weaver, 219 N.J. 131,

151 (2014) (noting that other crimes evidence is minimally

probative where it constitutes "needless presentation of

cumulative evidence"). That is, Mosley's statement that defendant

committed the robbery and kidnapping adds little to his statement

directly implicating and identifying defendant as a perpetrator

of the thirty burglary-related offenses charged in the indictment.

Thus, there is less prejudicial evidence of defendant's identity

as a perpetrator of the burglary related offenses than Mosley's

statement concerning defendant's commission of the robbery and

kidnapping. See State v. Jenkins, 178 N.J. Super. 347, 365 (2004)

(citation omitted) ("[I]n deciding whether prejudice outweighs

probative value, 'a court must consider the availability of other

evidence that can be used to prove the same point.'").

Under the fourth prong of the Cofield standard, we weigh the

probative value of the evidence concerning the robbery and

kidnapping against the possible prejudice defendant would suffer

21 A-0481-15T1

if the evidence was admitted to prove the thirty burglary-related

offenses. Willis, 225 N.J. 85, 99. The grand jury testimony

showed that during the robbery and kidnapping eighty-five-year-

old A.B. "was manhandled and thrown onto [a] chair," her hands and

feet were bound with a phone cord, and she was tied to the leg of

a chair. A.B. was placed on her knees with her hands pulled behind

her back, with her chest and stomach face down over the front of

the chair. She was left in that position during the short time

the perpetrators were in her home and for the four hours that

passed before her son found her.

The evidence showing the manner in which the robbery and

kidnapping of A.B. was committed demonstrates a propensity to use

violence and force against a helpless victim that was not relevant

in the eight burglaries. We are convinced the evidence posed an

obvious and compelling potential for substantial and undue

prejudice against defendant on the other thirty charges in the

indictment. The prejudice clearly outweighed the negligible, if

not nonexistent, probative value of the evidence.

We are convinced evidence concerning the robbery and

kidnapping was not admissible under N.J.R.E. 404(b) to prove

defendant's identity as the perpetrator of the thirty burglary-

related charges. The court erred by finding otherwise, and by

denying defendant's severance motion. See Sterling, 215 N.J. at

22 A-0481-15T1

73. We reverse the court's order denying defendant's severance

motion, vacate defendant's conviction and sentence, and remand for

further proceedings consistent with this opinion.

III.

Although our reversal of defendant's conviction renders it

unnecessary to address his remaining arguments, we offer the

following comments in the event defendant is convicted of any of

the offenses after trial or in accordance with a negotiated plea

agreement on remand. Defendant challenged the court's order that

he make restitution in the amount of $30,803.45 at the rate of

$100 per month following his release from incarceration. He

contended the court erred by ordering restitution without

conducting a hearing or making any findings about his ability to

pay. The State agreed, as do we.

A determination that a defendant shall pay restitution

requires, at a minimum, a summary hearing to protect a defendant's

due process rights, State v. Pessolano, 343 N.J. Super. 464, 479

(App. Div. 2001) (citations omitted), unless there is no dispute

as to the issue, State v. Orji, 277 N.J. Super. 582, 589-90 (App.

Div. 1994); see also State v. Jamiolkoski, 272 N.J. Super. 326,

329 (App. Div. 1994) (holding that a hearing other than a summary

proceeding must be conducted when there exists a good faith dispute

regarding a defendant's ability to pay). The judge is required

23 A-0481-15T1

to "explain the reasons underlying the sentence, including the

decision to order restitution, the amount of the restitution, and

its payment terms." State v. Scribner, 298 N.J. Super. 366, 371

(App. Div. 1997).

If on remand the court is required to determine the issue of

restitution, it shall "conduct a hearing at which the parties may

present evidence regarding" the victims' losses and defendant's

ability to pay. State v. Kennedy, 152 N.J. 413, 425 (1998). If

the court sentences defendant to pay restitution, it shall "explain

the reasons underlying its decision, including the amount of

restitution awarded and the terms of payment." Ibid.

Defendant also argued the court erred by stating in the

judgment of conviction that it "does not consent to a reduction

of [defendant's] primary parole eligibility date pursuant to

N.J.S.A. 30:4-123.67." The statute authorizes a defendant to

enter into a written parole contract agreement with the New Jersey

Department of Corrections (NJDOC) stipulating that the defendant's

completion of "individual programs of education, training, or

other activity" will result in a reduction of the defendant's

primary parole eligibility date under N.J.S.A. 30:4-123.52.

N.J.S.A. 30:4-123.67(a); see also Trantino v. N.J. State Parole

Bd., 166 N.J. 113, 208 n.3 (2001) (Baime, J., dissenting).

Defendant claims the sentencing court has no role in the decision

24 A-0481-15T1

allowing entry into a parole agreement and, as a result, the

court's statement in the judgment of conviction was erroneous and

should be deleted.

A sentencing court may either provide or withhold consent to

a reduction in a defendant's primary parole eligibility date.

N.J.S.A. 30:4-123.67(a), which allows a defendant's entry into a

parole agreement reducing the primary parole eligibility date, is

qualified by N.J.S.A. 30:4-123.52. The statute requires the

sentencing court's consent to a reduction in a defendant's primary

parole eligibility date. N.J.S.A. 30:4-123.52(b).

Thus, a sentencing court may include in a judgment of

conviction its lack of consent to any reduction of a defendant's

primary parole eligibility date that may be sought by entering

into a parole contract under N.J.S.A. 30:4:123-67(a). A sentencing

court's consent to a reduction of defendant's primary parole

eligibility date is required under N.J.S.A. 30:3-123.52(b).

Reversed and remanded for further proceedings in accordance

with this decision. We do not retain jurisdiction.

25 A-0481-15T1