RECORD IMPOUNDED

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

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).

NOT FOR PUBLICATION WITHOUT THE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.

November 14, 2018
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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 discretionaryterm 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.
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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.
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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.
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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.
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The officers entered defendant's apartment and patted him down. 

McVicar administered Miranda4rights 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).
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II.

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

murder charge. The motion judge conducted a Cofield5analysis 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).
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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 
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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 
10 A-5582-15T3

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 
11 A-5582-15T3

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) 
12 A-5582-15T3

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).
13 A-5582-15T3

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 
14 A-5582-15T3

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 
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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.