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).

NOT FOR PUBLICATION WITHOUT THE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.
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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 seconddegree 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. Codefendants, 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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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 Bruton1issue 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). 
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"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 
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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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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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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.