SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0041-17T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LETICIA GARDNER and 

YVONNE STRICKLAND1,

Defendants-Respondents.

_____________________________

Argued February 15, 2018 – Decided

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 

15-12-2841.

Tiffany M. Russo, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for appellant (Robert D. Laurino,

Acting Essex County Prosecutor, attorney; 

Tiffany M. Russo, of counsel and on the 

brief).

David J. Bruno and Robert A. Bianchi, argued 

the cause for respondent Leticia Gardner (The 

Bianchi Law Group, LLC, and Einhorn, Harris, 

Ascher, Barbarito & Frost, PC, attorneys; 

 

1 Respondent Yvonne Strickland has not filed a 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NOT FOR PUBLICATION WITHOUT THE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.

July 20, 2018
2 A-0041-17T2

David J. Bruno and Matheu D. Nunn, of counsel 

and on the brief).

PER CURIAM

On December 3, 2015, defendants Leticia Gardner and Yvonne 

Strickland were charged in an Essex County indictment with seconddegree conspiracy, N.J.S.A. 2C:5-2; second-degree theft by 

deception, N.J.S.A. 2C:20-4(a); and fourth-degree falsifying or 

tampering with records, N.J.S.A. 2C:21-4(a). The indictment 

stemmed from allegations that, in 2011, defendants submitted false 

closing documents to the Department of Housing and Urban 

Development (HUD) in connection with Gardner's purchase of a house 

in Avenel. By leave granted, the State appeals from a May 1, 2017 

Law Division order granting Gardner's motion to sever defendants 

for purposes of trial and a July 20, 2017 order denying the State's 

motion for reconsideration. We affirm.

According to the State's theory of the case, Gardner was 

required to sell her previous residence in East Orange before 

closing on the loan to purchase the Avenel house. On October 25, 

2011, Strickland submitted an application for HUD financing, 

signed by Gardner, falsely reporting that Gardner had sold her 

East Orange home when, in fact, the house was in foreclosure. 

During the investigation, Gardner made statements to investigators 

in which she referred to Strickland as her "associate" and alleged 
3 A-0041-17T2

that Strickland assisted in preparing the mortgage application. 

Strickland allegedly sent the false documents to her "business 

partner," Louis Charles, from "her email account on letterhead of 

'DCAPS, LLC,' which [was] a company formed and owned by 

Strickland." Charles, a licensed mortgage broker, forwarded the 

documents to HUD, and, as a result, Gardner successfully closed 

on the Avenel house. 

Prior to indicting defendants, the State charged Charles in 

a complaint-warrant with fourth-degree securing the execution of 

documents by deception, N.J.S.A. 2C:21-16, and third-degree 

forgery, N.J.S.A. 2C:21-1(a)(3). During a proffer session, 

Charles professed innocence and incriminated defendants, claiming 

he met Gardner in February 2011 through Strickland, who introduced 

her as "one of [her] best friend[s] and business partner." Charles 

claimed he agreed to help Gardner complete an application for a 

mortgage loan to purchase a new home at Strickland's request. He 

alleged he did not know the documents he forwarded to the mortgage 

lender were false, nor did he have any reason to think they were. 

To support his claims, Charles provided incriminating documents, 

including a 2009 civil consumer fraud complaint filed by the New 

Jersey Attorney General charging Strickland and several others

with mortgage fraud. After receiving this information, the State

administratively dismissed the criminal complaint against Charles
4 A-0041-17T2

and pursued the criminal prosecution of Strickland and Gardner, 

leading to the return of the joint indictment.

Strickland moved to sever, arguing that Gardner's statements 

to investigators implicated her and were the "functional 

equivalent of and tantamount to an interlocking confession 

prohibited by . . . State v. Young, 46 N.J. 152 (1965) and Bruton 

v. United States, 391 U.S. 123 (1968)." On February 14, 2017, the 

motion judge denied severance, concluding that although Gardner's

statements "may create hostility between co-defendants, it [did]

not rise to the level [of] prejudice . . . sufficient to sever a 

trial," and "mere antagonism [was] not sufficient grounds for 

severance." Additionally, the judge distinguished State v. 

Weaver, 219 N.J. 131, 157 (2014), because, unlike the co-defendants 

in Weaver who "each named the other as the shooter, the codefendants here [had] yet to blame the other for any wrong doing." 

The judge acknowledged Strickland's "fear of possible prejudice"

if additional "inculpatory evidence [was] produced," but believed 

"carefully worded jury instructions" could properly address her 

concerns. 

While Strickland's motion to sever was pending, the State 

moved pursuant to N.J.R.E. 404(b) to admit a September 12, 2011 

consent judgment Strickland had entered into with the Attorney 

General to resolve the 2009 mortgage fraud case against her. In 
5 A-0041-17T2

the consent judgment, "without admission of any liability or 

wrongdoing of any kind," Strickland agreed to "comply fully with 

all [f]ederal and [s]tate laws, including but not limited to the 

New Jersey [Consumer Fraud Act, N.J.S.A. 56:8-1 to -210], the New 

Jersey RICO statute, [N.J.S.A. 2C:41-1 to -6.2], and the Licensed 

Lenders Act."2 She further agreed not to "engage in any unfair or 

deceptive acts or practices in the conduct of any business," to 

pay $22,000 in "[s]ettlement of the [a]ction," to face increased 

penalties if she were to engage in any mortgage fraud related 

activities, and to abide by strict reporting requirements. 

On April 7, 2017, following oral argument, the judge denied 

the State's motion, finding that the consent judgment failed to 

meet the third and fourth prongs of the test for admissibility set 

forth in State v. Cofield, 127 N.J. 328, 338 (1992).3 

Acknowledging that the consent judgment was not the result of an 

adjudication or trial and did not require Strickland to admit 

 

2 Prior to 2009, both mortgage lending and consumer loans were 

subject to the New Jersey Licensed Lenders Act. L. 1996, c. 157. 

However, mortgage lending is now subject to the New Jersey 

Residential Mortgage Lending Act, N.J.S.A. 17:11C-51 to -89.

3 Under the four-prong Cofield test, other-crimes evidence is 

admissible only if: (1) relevant to a material issue; (2) similar 

in kind and reasonably close in time to the offense charged; (3) 

supported by clear and convincing evidence; and (4) its prejudice 

does not outweigh its probative value. 127 N.J. at 338.
6 A-0041-17T2

liability or wrongdoing of any kind, the judge explained that 

admitting the judgment

would have the exact effect and result of 

attributing criminal intent, wrongdoing, or 

liability to Strickland. It would have the 

effect of a prior conviction, when it is not.

In addition, any discussion about the 

three separate 2008 transactions [embodied in 

the Attorney General's civil mortgage fraud

complaint] would certainly enhance the 

possibility of confusion with the issues to 

be resolved in this case by the jury.

After the judge denied the State's N.J.R.E. 404(b) motion, 

Gardner moved to sever in order to pursue a third-party guilt 

defense based on the 2009 mortgage fraud complaint and 2011 consent 

judgment. On May 1, 2017, during oral argument on the motion,

Gardner argued she was entitled to present, in her defense, the 

2011 consent judgment as well as a potential victim identified in 

the 2009 civil complaint whom, like Gardner, Strickland allegedly 

"took advantage of." Gardner asserted that because the court had 

already barred the evidence as unfairly prejudicial to Strickland,

separate trials were necessary. The State objected and, contrary 

to its prior position, argued the consent judgment did not meet 

even the lesser burden for a defendant's use of 404(b) evidence 

because "it would mislead and confuse the jury" and was "unfairly 

prejudicial" to the State. 
7 A-0041-17T2

After oral argument, the judge issued an oral decision, 

determining that, although the evidence did not "survive the 

Cofield test, it [did] pas[s] the less rigorous balancing test of 

[N.J.R.E.] 403." As a result, the judge granted severance to 

allow "Gardner the opportunity to mount the defense that she [was] 

[c]onstitutionally entitled to present" and "to allow [her] the 

full exercise of her due process rights." The judge declined, 

however, to "address the issue of . . . antagonistic defense[s]," 

noting that it was "not relevant" at that point, and entered a 

memorializing order to sever defendants on the same date.

The State moved for reconsideration of the May 1, 2017 

severance order, distinguishing Weaver, where "the evidence that 

was sought to be admitted was supported by a Judgment of 

Conviction," from this case, where "the [c]onsent [j]udgment 

verbatim [did] not admit any liability or wrong doing of anything." 

According to the State, the consent judgment did "not negate the 

guilt of . . . Gardner" or "nullify any of the other acts,"

including Gardner's purchase of a BMW "within days of the closing 

of the [Avenel] property," Strickland's use of the BMW,

Strickland's addition to Gardner's insurance policy, or the 

"payment arrangements [for the insurance policy] between the two 

individuals." The State asserted that the evidence linked 

defendants "in a way that show[ed] that Ms. Gardner was not 
8 A-0041-17T2

completely innocent and was not completely [naïve] as to what was 

going on."

On July 20, 2017, the judge issued an order and written 

decision, denying the State's motion and upholding his initial 

decision. He determined the State only sought reconsideration "to 

reargue the motion for severance," and because it "did not agree 

with the outcome of the court's balancing of [the N.J.R.E. 403] 

factors," which were impermissible grounds for reconsideration 

under State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015). 

Noting that "[t]he factual distinctions (or similarities) between 

the Weaver . . . [and Gardner] cases [were] irrelevant" to his 

ruling, the judge acknowledged the Weaver Court's general 

proposition that "[a]n accused is entitled to advance in his 

defense any evidence which may rationally tend to refute his guilt 

or buttress his innocence of the charge made." Thus, the judge

"concluded that the prejudice to Gardner's due process rights and 

her ability to present her defense outweighed the needs of judicial

efficiency . . . and any prejudice that could accrue to the [S]tate 

by having to try the cases separately." This appeal followed.

On appeal, the State raises the following single point for 

our consideration:
9 A-0041-17T2

POINT I

THE TRIAL JUDGE ERRED BY, AFTER CORRECTLY 

DENYING DEFENDANT STRICKLAND'S MOTION FOR 

SEVERANCE AND DENYING THE STATE'S MOTION TO 

ADMIT [N.J.R.E.] 404(B) EVIDENCE, GRANTING 

DEFENDANT GARDNER'S MOTION FOR SEVERANCE.

"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); see also

State v. Sterling, 215 N.J. 65, 73 (2013) ("A court must assess 

whether prejudice is present, and its judgment is reviewed for an 

abuse of discretion."). A court may try two or more defendants 

together "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." R. 3:7-7. Indeed, there 

is a "general preference to try co-defendants jointly," State v. 

Robinson, 253 N.J. Super. 346, 364 (App. Div. 1992), particularly 

when "much of the same evidence is needed to prosecute each 

defendant," Brown, 118 N.J. at 605. In some circumstances, a 

joint trial is "'preferable' because it serves judicial economy, 

avoids inconsistent verdicts, and allows for a 'more accurate 

assessment of relative culpability.'" Weaver, 219 N.J. at 148 

(quoting Brown, 118 N.J. at 605). 

"Nevertheless, a single joint trial, however desirable from 

the point of view of efficient and expeditious criminal 
10 A-0041-17T2

adjudication, may not be had at the expense of a defendant's right 

to a fundamentally fair trial." State v. Sanchez, 143 N.J. 273,

290 (1996) (quoting United States v. Echeles, 352 F.2d 892, 896 

(7th Cir. 1965)). Thus, if the court finds that permissible or 

mandatory joinder will prejudice one or both defendants, it may 

"grant a severance of defendants[] or direct other appropriate 

relief." R. 3:15-2(b). However, "[t]he test for granting 

severance . . . is a rigorous one." Brown, 118 N.J. at 605-06. 

"The danger by association that inheres in all joint trials is not 

in itself sufficient to justify a severance, provided that by 

proper instructions to the jury, the separate status of codefendants can be preserved." Id. at 605. Nonetheless, "[i]t is 

possible that the level of antagonism between co-defendants, 

despite the absence of mutually exclusive defenses, can become so 

intense as to justify a severance." Id. at 608. 

One such basis for severance arises when restrictions on the 

admissibility of exculpatory evidence, such as proof of a codefendant's prior bad acts under N.J.R.E. 404(b), would unfairly 

prejudice a defendant at a joint trial, but the restrictions would 

be unnecessary in separate trials. See Weaver, 219 N.J. at 157-

58. Generally, evidence of other crimes or bad acts is 

inadmissible "to prove the disposition of a person in order to 

show that such person acted in conformity therewith" on another 
11 A-0041-17T2

occasion. N.J.R.E. 404(b). However, a defendant "may use othercrimes evidence in support of his [or her] defense 'if in reason 

it tends, alone or with other evidence, to negate his [or her] 

guilt of the crime charged.'" Weaver, 219 N.J. at 157 (quoting 

State v. Garfole, 76 N.J. 445, 453 (1978)).

Such defensive use of other crimes or bad acts evidence, 

"sometimes referred to as 'reverse 404(b)' evidence," is not 

subject to the more stringent test of N.J.R.E. 404(b) admissibility 

set forth in Cofield, 127 N.J. at 338, "because 'an accused is 

entitled to advance in his [or her] defense any evidence which may 

rationally tend to refute his [or her] guilt or buttress his [or 

her] innocence of the charge made.'" Weaver, 219 N.J. at 150 

(quoting Garfole, 76 N.J. at 453). Instead, "[a]dmissibility of 

this evidence is governed by N.J.R.E. 401, not N.J.R.E. 404(b)." 

Weaver, 219 N.J. at 157. Thus, "simple relevance to guilt or 

innocence" is sufficient, as "prejudice to the defendant is no 

longer a factor." Id. at 150 (quoting Garfole, 76 N.J. at 452-

53). Evidence is relevant if it has "a tendency in reason to 

prove or disprove any fact of consequence to the determination of 

the action." N.J.R.E. 401.

In addition to relevance, this "more relaxed standard" still 

requires the court to "determine that the probative value of the 

evidence is not substantially outweighed by any of the [N.J.R.E.] 
12 A-0041-17T2

403 factors" for exclusion. Weaver, 219 N.J. at 151; see also

N.J.R.E. 403. Under this standard, "the question . . . is not 

relevance as such, but the degree of relevance balanced against 

the counter considerations expressed in [N.J.R.E. 403] of undue 

consumption of time, confusion of the issues[,] and the misleading 

of the jury." Garfole, 76 N.J. at 451. "This determination is 

[also] highly discretionary." Weaver, 219 N.J. at 151.

Another basis for severance arises "when a defendant's and a 

co-defendant's defenses are not simply at odds, but are 

'antagonistic at their core,' meaning that they are mutually 

exclusive and the jury could believe only one of them." Id. at 

149 (quoting Brown, 118 N.J. at 605-07). Conversely, "[i]f the 

jury can return a verdict against one or both defendants by 

believing neither, or believing portions of both, 

or . . . believing both completely, the defenses are not mutually 

exclusive." Brown, 118 N.J. at 606. A court should not grant 

severance merely because "one defendant seeks to escape conviction 

by placing guilt on his or her co-defendant." Ibid.

Here, we discern no abuse of discretion in the judge's 

decision that Gardner's defensive use of the evidence constitutes 
13 A-0041-17T2

sufficient grounds for severance.4 Strickland's 2011 consent 

judgment is relevant to Gardner's case because it rationally 

supports her defense that she "was a mere dupe of a sophisticated 

individual versed in mortgage fraud." Indeed, the State admitted 

as much in its N.J.R.E. 404(b) motion to introduce the consent 

judgment in its case in chief, where it argued the "conduct that 

was relevant to the civil judgment in . . . 2011 is substantially 

similar to the conduct . . . charged in this indictment."5 

According to the State, not only was the conduct substantially 

similar, it was "sophisticated" because "there are 

institutions, . . . mechanisms, and procedures in place that are 

more complex than what perhaps a normal layperson may understand." 

This type of evidence, standing alone or in combination with other 

evidence, may refute Gardner's guilt or buttress her claim of 

innocence. See Weaver, 219 N.J. at 150. Reverse 404(b) evidence 

 

4 We note the judge's ruling is entirely consistent with his prior 

ruling denying the State's application to admit the 2011 consent 

judgment under N.J.R.E. 404(b) based on, among other things, its 

prejudice to Strickland outweighing its probative value.

5 We note the State's contrary argument in its merits brief that 

"[t]he consent judgment was the result of litigation that involved 

an entirely different scheme" and "is proof of no fact of 

consequence to this case." On the contrary, the compelling nature 

of the evidence is demonstrated by its role in the State's decision 

to dismiss the criminal complaint against Charles once his proffer 

session revealed the existence of the 2009 complaint and inevitably

led to the discovery of the 2011 consent judgment. 
14 A-0041-17T2

does not have to refute a defendant's guilt on its own in order 

to be admissible; a defendant can use it in conjunction with other 

evidence. See Weaver, 219 N.J. at 150; see also Garfole, 76 N.J. 

at 453. Thus, the judge reasonably concluded the consent judgment 

met the simple relevance standard for admissibility of reverse 

404(b) evidence. 

Likewise, turning to the N.J.R.E. 403 factors, the judge 

properly concluded the factors did not outweigh the probative 

value of the evidence. Garfole, 76 N.J. at 453-54; see also

Weaver, 219 N.J. at 157. Although the judgment did not require 

Strickland to admit any wrongdoing, it prohibited her from engaging 

in "any unfair or deceptive acts or practices in the conduct of 

any business" and imposed a sanction. As the State alleged in its 

own N.J.R.E. 404(b) motion, Strickland allegedly "engaged in 

criminal behavior of the exact same nature six weeks later," which 

was "contrary to [her] affirmative obligations in [the consent 

judgment]." The judge expressed his intent to limit the scope of 

inquiry into the underlying facts of the 2009 mortgage fraud case 

in order to avoid any potential confusion of issues or misleading 

of the jury. Under these circumstances, we agree with the judge's 

determination that any applicable N.J.R.E. 403 factors did not 

outweigh Gardner's right to due process and to present a defense. 
15 A-0041-17T2

We also find no error in the judge's denial of the State's 

motion for reconsideration. See Puryear, 441 N.J. Super. at 294. 

Because we discern no abuse of discretion in either of the judge's 

decisions, like the judge, we need not address whether Gardner's 

and Strickland's positions were antagonistic and mutually 

exclusive as an alternative basis for severance.

Affirmed.