SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5556-16 

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AAKASH A. DALAL,

Defendant-Appellant.

________________________

Argued January 12, 2021 – Decided April 15, 2021

Before Judges Fisher, Gilson, and Moynihan.

On appeal from the Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 13-03-

0374.

Alan L. Zegas argued the cause for appellant (Law 

Offices of Alan L. Zegas, attorneys; Alan L. Zegas 

and Joshua M. Nahum, on the brief).

William P. Miller, Assistant Prosecutor, argued the 

cause for respondent (Mark Musella, Bergen County 

Prosecutor, attorney; William P. Miller and John J. 

Scaluti, Legal Assistant, on the briefs).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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A jury convicted defendant Aakash Dalal of seventeen crimes related to 

the vandalism and fire-bombing of four Jewish synagogues and a Jewish 

community center. Specifically, defendant was convicted of first-degree 

terrorism, N.J.S.A. 2C:38-2(a); first-degree attempted arson, N.J.S.A. 2C:5-1 

and N.J.S.A. 2C:17-1(a); two counts of first-degree conspiracy to commit 

arson, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:17-1; two counts of first-degree 

aggravated arson as an accomplice, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:17-

1(a)(2); three counts of first-degree bias intimidation as an accomplice, 

N.J.S.A. 2C:2-6 and N.J.S.A. 2C:16-1(a)(1); three counts of second-degree 

possession of a destructive device for an unlawful purpose, N.J.S.A. 2C:39-

4(c); three counts of third-degree possession of a destructive device, N.J.S.A. 

2C:39-3(a); and two counts of fourth-degree bias intimidation, N.J.S.A. 2C:16-

1(a)(1). 

In a separate published opinion, we analyzed and rejected defendant's 

constitutional challenges to the New Jersey Anti-Terrorism Act, 

N.J.S.A 2C:38-1 to -5. State v. Dalal, ___ N.J. Super. ___ (App. Div. 2021). 

In this opinion, we analyze and reject defendant's additional arguments.
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I.

During the four weeks starting on December 10, 2011, and ending on 

January 11, 2012, five Jewish houses of worship were subject to arson, 

attempted arson, or vandalism. Following an investigation, defendant and codefendant Anthony Graziano were charged with multiple crimes related to 

those acts. We have provided a detailed description of the facts and some of 

the procedural history in our published opinion. Accordingly, we summarize 

here some of the additional facts and procedural history relevant to defendant's 

non-Anti-Terrorism Act-based challenges to his convictions. 

During the investigation of the vandalism and arsons, law enforcement 

personnel identified co-defendant Graziano as a suspect. After collecting 

additional evidence, they applied for and obtained a search warrant for 

Graziano's home and his biological fluids. The warrant application sought 

permission to search "any and all computers" for evidence of motive and the 

commission of several crimes, including arson and bias intimidation. The

warrant authorized the seizure of computers and electronic equipment capable

of storing data, as well as their analysis by a qualified forensic specialist. Two 

laptop computers were seized. 
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In late February 2012, Bergen County Prosecutor's Office (BCPO) 

Senior Forensic Analyst Andre DiMino completed an analysis of Graziano's 

computers. The analysis revealed instant message chats between 

"Dreeper1Up" and "QuantumWorm," discussing the 2011 vandalisms and 2012 

arsons. The analysis indicated that Graziano was "Dreeper1Up." 

On March 2, 2012, defendant was arrested and charged with several 

counts of arson, bias intimidation, and criminal mischief. That same day, 

defendant was interrogated. After waiving his Miranda 1rights, defendant 

admitted he was "QuantumWorm" and his involvement in the chats. 

Defendant also admitted he had encouraged Graziano and acknowledged 

assisting Graziano in criminal behavior that carried a risk of death because he 

"thought it was exciting." Nevertheless, defendant denied hating Jewish 

people and characterized his encouragement of Graziano as "jokes." 

Defendant was incarcerated in the Bergen County Jail. In April 2012, a 

federal judge received a letter from one of defendant's fellow inmates, 

expressing concern that defendant was planning to attack a federal building. 

The informant's letter stated he often spoke with defendant and defendant told 

him "how much he hates the government and the Jewish people." 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
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The letter was turned over to the FBI and, thereafter, the informant met 

with special agents on four occasions in May and June of 2012. During those 

meetings, the informant described defendant's alleged plan to obtain a gun and 

murder a Bergen County assistant prosecutor. The informant also provided 

special agents with papers containing the targeted prosecutor's name and an 

email address, both written in defendant's handwriting. On June 25, 2012, the 

FBI alerted the BCPO to the threat. That same day, at the request of the FBI, 

the informant spoke with defendant while wearing a wire, and the recording 

captured defendant discussing his efforts to obtain a handgun. 

On June 27, 2012, a detective with the BCPO applied for and obtained a 

warrant to search defendant's jail cell. In the warrant application, the detective 

described the informant's disclosures to the FBI and the papers believed to 

have been written by defendant. The recorded conversation between defendant 

and the informant was also referenced: 

On June 25, 2012, agents with the FBI wired the 

confidential informant with a recording device to 

allow for the recording of a conversation between 

Dalal and the confidential informant. While the 

totality of the recording has not been completely 

analyzed, Dalal is heard to discuss with the 

confidential informant his efforts to obtain a handgun. 
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In executing the warrant to search defendant's jail cell, investigators 

found papers containing the names of BCPO staff and two judges who sit in 

Bergen County; references to explosives; and notations reading "dead cops, 

dead cops." Defendant's papers also contained anti-Semitic references and 

drawings. 

In March 2013, a Bergen County grand jury returned a thirty-count 

indictment, charging both defendant and Graziano with numerous first, second, 

third, and fourth-degree crimes. Thereafter, defendant filed a series of pretrial 

motions seeking to suppress the evidence seized from his jail cell; to suppress 

the instant messages and other computer data seized from Graziano's home; to 

sever certain charges; and to disqualify the BCPO from handling the case. The 

State opposed those motions and moved to admit the writings and drawings 

seized from defendant's jail cell in accordance with N.J.R.E. 404(b). 

On April 21, 2016, the trial court issued a written decision on the State's 

motion. After undertaking an analysis pursuant to State v. Cofield, 127 N.J. 

328 (1992), the trial court found "the writings and drawings [were] extremely 

probative of [defendant's] motive and the admission of such evidence 

substantially outweigh[ed] the potential prejudice against him." The 

documents were admitted with redactions, displaying the portions exhibiting 
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defendant's anti-Semitism, and the court ordered a limiting instruction. 

Defendant's motion to suppress was denied on August 19, 2016. 

Defendant's motion to suppress the instant messages and other items 

seized from Graziano's home was denied in April 2016. The court found the 

information contained in the affidavit established probable cause for the search 

and seizure. The court also found the "any and all computers" language in 

the affidavit and search warrant were sufficient to establish what could be 

seized. Consequently, the search of Graziano's computer and the seizure of the 

data in the computer were deemed lawful. 

Defendant was tried before a jury between September 27 and November 

1, 2016. The analyst who searched Graziano's computers and discovered the 

instant messages testified. The State introduced into evidence a report 

containing the messages in their raw data form. Defense counsel objected, 

contending the report was "an editorialized document." The trial court 

overruled defense counsel's objection and instructed the jury that the 

statements in the chats could only be considered as "evidence of Aakash Dalal 

and Anthony Graziano's plan, motive, state-of-mind, and identity." The chats 

could not be used to infer defendant's guilt "just because he has these beliefs." 
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Over defendant's objection, several documents seized from defendant's 

jail cell were admitted and published for the jury's consideration. The trial 

judge also gave the jury a limiting instruction on those documents, directing 

that they could only be considered as "evidence of [defendant's] plan, motive, 

or state-of-mind." The documents and their contents could not be used to infer 

"that defendant is a bad person and therefore[] must be found guilty[.]"

In total the State presented seventeen witnesses and moved 141 exhibits 

into evidence. Defendant elected not to testify and called no witnesses. After 

hearing all the evidence, the jury convicted defendant of nine first-degree 

crimes, three second-degree crimes, three third-degree crimes, and two fourthdegree crimes. 

 II.

In addition to his constitutional challenges to the Anti-Terrorism Act, 

defendant presents seven arguments: 

Point [I] – THE TRIAL COURT ERRED BY 

FAILING TO SUPPRESS THE EVIDENCE 

RETRIEVED FROM AN IMPROPER SEARCH OF 

MR. DALAL'S JAIL CELL. 

A. THE TRIAL COURT ERRED BY FAILING TO 

SUPPRESS THE EVIDENCE RECOVERED 

FROM MR. DALAL'S JAIL CELL 

PURSUANT TO A SEARCH WARRANT 

OBTAINED THROUGH THE VIOLATION OF 
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A-5556-16

MR. DALAL'S SIXTH AMENDMENT 

RIGHTS

1. THE MASSIAH REQUIREMENTS

2. THE VIOLATIONS OF MR. DALAL'S 

RIGHTS UNDER MASSIAH, THE 

FIFTH AND SIXTH AMENDMENTS TO 

THE UNITED STATES 

CONSTITUTION AND THE NEW 

JERSEY CONSTITUTION

B. THE TRIAL COURT ERRED BY 

ADMITTING THE JAIL CELL EVIDENCE 

UNDER RULE 404(b)

Point [II] – THE TRIAL COURT ERRED BY 

FAILING TO SUPPRESS THE COMPUTER DATA 

RECOVERED FROM ANTHONY GRAZIANO'S 

COMPUTER WITHOUT PROBABLE CAUSE[.]

A. THE WARRANT FOR DEFENDANT 

ANTHONY GRAZIANO'S COMPUTER 

LACKED PROBABLE CAUSE AND THE 

DATA RETRIEVED FROM THE COMPUTER 

MUST BE SUPPRESSED

B. THE DATA RECOVERED FROM 

UNALLOCATED SPACE ON ANTHONY 

GRAZIANO'S COMPUTER MUST BE 

SUPPRESSED BECAUSE IT FAILS TO 

SATISFY THE STANDARDS FOR 

ADMISSION OF EVIDENCE IN NEW 

JERSEY

Point [III] – THE TRIAL COURT ERRED BY 

FAILING TO SEVER THE CHARGES FOR 

CRIMINAL MISCHIEF AND BIAS INTIMIDATION 
10 A-5556-16

FROM THE REMAINING COUNTS FOR ARSON 

AND TERRORISM.

Point [IV] – THE TRIAL COURT ERRED BY 

FAILING TO PERMIT MR. DALAL TO REVIEW 

JUROR QUESTIONNAIRES DURING VOIR DIRE.

Point [V] – THE TRIAL COURT ERRED IN 

DENYING MR. DALAL'S MOTION FOR A 

JUDGMENT OF ACQUITTAL[.] 

A. MR. DALAL SHOULD HAVE BEEN 

ACQUITTED OF COUNTS 4 THROUGH 7 OF 

THE INDICTMENT RELATED TO K'HAL 

ADATH JERSHURUN [sic]

B. MR. DALAL SHOULD HAVE BEEN 

ACQUITTED OF COUNTS 8 THROUGH 12 

RELATED TO THE JEWISH COMMUNITY 

CENTER

C. MR. DALAL SHOULD HAVE BEEN 

ACQUITTED ON THE SIX DESTRUCTIVE 

DEVICE COUNTS

Point [VI] – THE BERGEN COUNTY 

PROSECUTOR'S OFFICE MUST BE 

DISQUALIFIED FROM THIS CASE TO AVOID 

EVEN THE APPEARANCE OF IMPROPRIETY[.]

Point [VII] – THE TRIAL COURT'S LOSS OF THE 

VERDICT SHEET IN THIS MATTER REQUIRES 

THE VERDICT BE VACATED AND THE MATTER 

REMANDED FOR A NEW TRIAL.

We are not persuaded that any of these arguments warrant the reversal of the 

jury's verdict and, therefore, we affirm. 
11 A-5556-16

1. The Motion to Suppress the Documents Seized from Defendant's 

Jail Cell.

Defendant contends that the evidence seized from his jail cell should 

have been excluded on two grounds: Its seizure violated his constitutional 

rights; and the documents used at trial were inadmissible under N.J.R.E. 

404(b). 

a. The Seizure of the Evidence

Defendant argues that his Sixth Amendment right to counsel was 

violated when a government informant questioned him. Defendant contends 

that the information the informant gleaned was used to obtain a warrant to 

search his jail cell. Thus, defendant argues that the documents seized from his 

cell should have been suppressed as fruits of a poisonous tree. We disagree 

because there are several factual and legal flaws in the chain of events 

defendant relies on.

In denying defendant's motion to suppress, the trial court found that the 

jailhouse informant had been used by law enforcement personnel primarily to 

investigate separate, new crimes, not to solicit information concerning the 

vandalism and arsons at the synagogues and Jewish community center. Those 

findings are supported by substantial credible evidence. 
12 A-5556-16

The informant first came to the attention of law enforcement when he 

wrote to a federal judge about defendant's alleged plot to bomb a federal 

building. The FBI then interviewed the informant several times and learned of 

defendant's alleged plots to kill an assistant prosecutor and to obtain a gun.2 

The informant also acquired information from defendant about the vandalism 

and the arsons at the Jewish houses of worship, but did not do so at the 

instruction of the FBI. Consequently, the trial court did not find a violation of 

defendant's Sixth Amendment right. We agree.

The Sixth Amendment to the United States Constitution guarantees 

criminal defendants the assistance of legal counsel. U.S. Const. amend. VI. 

That right can attach at various times, but it clearly attaches once adversarial 

judicial proceedings are initiated, such as when formal charges are brought. 

Kirby v. Illinois, 406 U.S. 682, 688 (1972); State v. Lenin, 406 N.J. Super. 

361, 371-72 (App. Div. 2009).

"Once the right to counsel has attached . . . the State is obliged to honor 

it." State v. Leopardi, 305 N.J. Super. 70, 77 (App. Div. 1997). Neither law 

2

 In August 2013, defendant was indicted for first-degree conspiracy to 

commit murder, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3; second-degree 

conspiracy to possess an assault firearm, N.J.SA. 2C:5-2(a)(1) and N.J.S.A. 

2C:39-5(f); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). After he 

was convicted on the earlier charges, the State dismissed the second 

indictment.
13 A-5556-16

enforcement personnel nor prosecutors can act "in a manner that circumvents 

[or] dilutes the protection afforded by the right to counsel." Ibid. (alteration 

in original) (quoting Maine v. Moulton, 474 U.S. 159, 171 (1985)).

A defendant is denied his Sixth Amendment right when "his own 

incriminating words . . . [are] deliberately elicited from him after he ha[s] been 

indicted and in the absence of his counsel" by law enforcement, Massiah v. 

United States, 377 U.S. 201, 206 (1964), or jailhouse informants working on 

their behalf, Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). "[A] defendant 

does not make out a violation of that right simply by showing that an 

informant, either through prior arrangement or voluntarily, reported his 

incriminating statements to the police." Kuhlmann, 477 U.S. at 459. "[T]he 

Sixth Amendment is not violated whenever — by luck or happenstance — the 

State obtains incriminating statements from the accused after the right to 

counsel has attached[.]" Ibid. (quoting Moulton, 474 U.S. at 176). 

Instead, defendant "must demonstrate that the police and their informant 

took some action, beyond merely listening, that was designed deliberately to 

elicit incriminating remarks." Ibid. In other words, the State must engage in 

deliberate action to obtain information from defendant regarding the pending 
14 A-5556-16

charges. See, e.g., Moulton, 474 U.S. at 176-77; United States v. Henry, 447 

U.S. 264, 270-71 (1980); Massiah, 377 U.S. at 202-03.

In addition, law enforcement personnel can investigate new crimes. 

Consequently, a defendant who has already been charged with certain crimes 

can be investigated and even questioned about uncharged and unrelated 

offenses. McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991). Those separate 

investigations are allowed because the Sixth Amendment right to counsel is 

"offense specific." Texas v. Cobb, 532 U.S. 162, 164 (2001); State v. Harris, 

181 N.J. 391, 435 (2004). 

The trial court found that the jailhouse informant was primarily used to

investigate potential new crimes by defendant: plots to blow up a federal 

building and to kill an assistant prosecutor. When the warrant to search 

defendant's jail cell was sought on June 27, 2012, defendant had not been 

charged with those new crimes. Accordingly, his Sixth Amendment right had 

not attached.

Furthermore, an examination of the application for the warrant to search 

defendant's jail cell establishes that the focus was on those new crimes. 

Although there was a reference to the recorded conversation, the full transcript 

of that conversation was not yet available. More importantly, we agree with 
15 A-5556-16

the trial judge that there was sufficient probable cause beyond the conversation 

to support the warrant to search defendant's jail cell. See State v. Sullivan, 

169 N.J. 204, 210-11 (2001) (recognizing the validity of warrants 

supported by probable cause, "a 'well grounded' suspicion" that "evidence . . . 

is at the place sought to be searched"). 

b. The Admission of the Documents Seized from Defendant's Jail 

Cell

Defendant contends that the evidence seized from his jail cell was 

inadmissible because it was inflammatory and not relevant to a material issue. 

The trial court granted the State's motion to admit some of that evidence in 

accordance with N.J.R.E. 404(b). We review such a ruling for abuse of 

discretion. State v. Rose, 206 N.J. 141, 157 (2011).

Our Supreme Court has established a four-part test to guide the 

admission 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 
16 A-5556-16

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)).]

The trial court carefully applied the four Cofield factors and, as already 

noted, held the seized writings could be admitted with redactions and a 

limiting instruction. The trial court's determination did not "rest[] on an 

impermissible basis," nor was it "based upon a consideration of irrelevant or 

inappropriate factors." State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 

2017) (quoting State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div. 2013)). 

Accordingly, we discern no abuse of discretion. 

Moreover, we must "determine whether any error found is harmless or 

requires reversal." State v. Prall, 231 N.J. 567, 581 (2018). To warrant 

reversal, an error must be "of such a nature as to have been clearly capable of 

producing an unjust result[.]" R. 2:10-2. 

We discern no reversible error because the documents admitted into 

evidence that were seized from defendant's jail cell were at best cumulative. 

The State presented strong and compelling evidence of defendant's guilt, which 

came primarily from defendant's own words in the instant messaging chats that 

he had with co-defendant Graziano. Accordingly, the introduction of the 
17 A-5556-16

documents seized from defendant's jail cell was at best harmless error. See 

Prall, 231 N.J. at 580; State v. Camacho, 218 N.J. 533, 554-55 (2014) 

(considering court's instructions and "the overwhelming evidence produced by 

the State," asserted error was harmless); see also State v. Daniels, 182 N.J. 80, 

95 (2004) (alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 

(1971)) (claimed error must be "sufficient to raise a reasonable doubt as to 

whether [it] led the jury to a result it otherwise might not have reached"). 

2. The Admission of the IM Chats

Defendant challenges the instant messaging chat evidence on two 

grounds. He contends (1) the seizure of Graziano's computer was illegal 

because the warrant lacked probable cause; and (2) the data seized from the 

computer was not sufficiently reliable to be admitted into evidence. We reject 

both these arguments.

a. The Search Warrant

Law enforcement identified Graziano as a suspect after they obtained 

security footage from a Walmart depicting him purchasing items used to make 

the Molotov cocktails. Relying on that information, as well as other 

information garnered during the investigation, a detective from the BCPO 
18 A-5556-16

applied for a warrant to search the home where Graziano lived with his 

parents.

The detective who prepared the affidavit in support of the warrant 

described the evidence sought as including electronically stored data related to 

the commission of the suspected crimes, as well as the motive for the arsons. 

A judge reviewed that application and issued a warrant, finding probable cause 

for the search of computers and other devices that could store information 

electronically. Two computers were then seized from Graziano's home. 

As already noted, a warrant is lawful if it is supported by probable cause 

to believe that evidence of a crime is in the place to be searched. Sullivan, 169 

N.J. at 210. There is no precise definition of probable cause, but it is based on 

a "'common-sense, practical standard' dealing with 'probabilities' and the 

'practical considerations of everyday life on which reasonable and prudent 

[persons], not legal technicians, act.'" State v. Evers, 175 N.J. 355, 381 (2003) 

(quoting Sullivan, 169 N.J. at 211). Consequently, an affidavit seeking a 

search warrant must present "a fair probability that contraband or evidence of a 

crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 

(1983). Because "substantial deference must be paid" to a trial court's 

probable cause determination, "defendant bears the burden of demonstrating 
19 A-5556-16

that the warrant was issued without probable cause or that the search was 

otherwise unreasonable." Evers, 175 N.J. at 381 (citing State v. Valencia, 93 

N.J. 126, 133 (1983)). 

We hold that there was probable cause to search for computers and other 

devices that stored electronic information. Graziano was being investigated 

for arsons at synagogues. It is well-recognized that persons who engage in 

hate crimes often visit certain websites and communicate with other people 

who share their views. See United Nations, The Use of the Internet for 

Terrorist Purposes 5 (2012) (explaining use of the internet "as a means to 

publish extremist rhetoric . . . develop relationships . . . and solicit support"). 

It was, therefore, eminently reasonable to search for computers and other 

electronic equipment in an effort to reveal Graziano's motive for and planning 

of the arsons.

b. The Admission of the Chats

A forensic expert examined Graziano's computer and discovered that 

someone had tried to wipe it clean. Nevertheless, the expert was able to create 

an image of the computer's hard drive and, using forensic software, search the 

recovered data. The data included instant messaging chats. The expert found 

and generated a report with numerous chats between "Dreeper1Up" and 
20 A-5556-16

"QuantumWorm." Some of the messages displayed the date and time that they 

had been sent. Other messages, however, did not have such information. 

Moreover, some of the computer's data could not be recovered. Therefore, 

some of the chats were incomplete.

At trial, defendant objected when the State's expert began to testify. The 

trial judge overruled that objection and allowed the expert to testify and 

explain how he had put together the chats. The court also allowed the State to 

introduce screenshots from the forensic examination software; a report 

containing the data extracted from the chats; and a "streamlined" copy of 

messages, with the coding removed. The trial court gave a limiting instruction 

before allowing the State to introduce the substance of the chats. 

"A trial court's ruling on the admissibility of evidence is reviewed on 

appeal for abuse of discretion." Rose, 206 N.J. at 157. "[C]onsiderable 

latitude is afforded" to the trial court's evidentiary rulings, and they will be 

reversed "only if [they] constitute[] an abuse of discretion." State v. Cole, 229 

N.J. 430, 449 (2017) (quoting State v. Kuropchak, 221 N.J. 368, 385 (2015)). 

We discern no abuse of discretion or error in the admission of the IM 

chats. The State presented those chats through a forensic expert. Defense 

counsel made no objection to the expert's qualification as a computer data 
21 A-5556-16

recovery expert, despite reserving the right to do so after cross-examination. 

Consequently, there is a sufficient reliable basis for the admission of the 

evidence. Defendant's arguments concerning how the information was 

reconstructed and that some information was missing go to the weight of the 

evidence. See, e.g., State v. Harvey, 151 N.J. 117, 195 (1997) (after trial court 

found underlying databases reliable, questions regarding their characteristics 

went "to the weight of the evidence, not its admissibility"); see also State v. 

McGuire, 419 N.J. Super. 88, 126-27 (App. Div. 2011) (noting crossexamination and contrary evidence are means of undermining expert 

testimony); State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004) 

(citations omitted) (recognizing a "factfinder may . . . accept some of the 

expert's testimony and reject the rest . . . even if that testimony is unrebutted"). 

At trial, the defense challenged the weight and credibility of the IM 

chats, but apparently the jury rejected those arguments. We discern no error or 

abuse of discretion that would warrant us to second-guess the jury's factual 

findings. Harvey, 151 N.J. at 200 (jury may assign "whatever weight it 

deem[s] appropriate to the expert evidence"). 

3. The Motion to Sever
22 A-5556-16

Defendant contends that the charges of criminal mischief and bias 

intimidation should have been severed from the arson and terrorism charges 

because by trying them together defendant was prejudiced. 

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 3:15-2(b), "[i]f for 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 to deny 

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) (first citing State v. Laws, 50 N.J. 159, 175 (1967); and 

then citing State v. Sanchez, 224 N.J. Super. 231, 245 (App. Div. 1988)). 

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 
23 A-5556-16

N.J. Super. 1, 38 (App. Div. 2001) (citing State v. Rosenberg, 37 N.J. Super. 

197, 202 (App. Div. 1955)).

Defendant must demonstrate prejudice. State v. Moore, 113 N.J. 239, 

273-74 (1988) (recognizing more than a "mere claim" is required). 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, 297-98 (App. Div. 1983). The key to 

determining whether joinder is prejudicial to a defendant is assessing 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." 

State v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting 

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.'" Chenique-Puey, 145 N.J. at 341 (quoting Coruzzi, 189 N.J. Super. at 

299).

Here, we discern no abuse of discretion in the trial court's decision not to 

sever the charges of criminal mischief and bias intimidation. We agree with 

the trial court that the N.J.R.E. 404(b) requirements, as articulated in Cofield, 
24 A-5556-16

127 N.J. at 338, were met, and that evidence of the vandalism, arson, and the 

motive for defendant's actions would have been admissible if defendant had 

been separately tried on the charges of bias intimidation and criminal mischief. 

See Krivacska, 341 N.J. Super. at 39. Defendant's motive in committing all 

the charged offenses was relevant. The crimes also arose out of the same 

series of events. Moreover, the evidence of all the crimes was sufficiently 

clear and convincing to be presented together in one trial. Finally, the 

probative value of the evidence of the various crimes was not outweighed by 

its apparent prejudice. Consequently, the trial of all the counts was not unduly 

prejudicial to defendant. 

4. The Jury Voir Dire

Defendant asserts that the trial court committed reversible error by 

limiting his access to juror questionnaires. During the jury selection process, 

the State expressed concern about certain pages of the jury questionnaire being 

given to defendant. The State explained that it had a concern that defendant 

might try to use biographical information about the jurors to target them, as he 

had with alleged plots against an assistant prosecutor and certain judges.

The court ruled that defendant would be given the first eight pages of the 

questionnaire, but not the final three pages, which contained biographical 
25 A-5556-16

information. Defendant still had access to that information, however, because 

it was reviewed during the jury selection process when he was present.

We discern no abuse of discretion or prejudice related to the jury 

selection process. Defendant was present during the questioning of 

prospective jurors and he had access to and could discuss the information with 

his attorneys. The only limitation was that he could not physically possess 

biographical information concerning the jurors. 

Moreover, even if we assume this restriction impacted defendant's right 

to be present and contribute to the jury selection process, such an error is 

generally subject to a harmless error analysis. See State v. W.A., 184 N.J. 45, 

48, 64 (2005); see also R. 3:16(b). We hold defendant's restricted access, 

under the described circumstances, was not "clearly capable of producing an 

unjust result." R. 2:10-2.

5. The Motion for Acquittal

At trial, defendant moved for a judgment of acquittal. He renews his 

arguments on appeal. First, defendant argues that there was no evidence that 

he had any knowledge of or participated in the planning of the attempted arson 

at the Jewish temple K'Hal Adath Jeshurun. Second, he argues that he should 

have been acquitted on the five counts related to the Paramus Jewish 
26 A-5556-16

Community Center. Finally, he asserts that there was insufficient evidence to 

convict him of the six counts charging him with possession of destructive 

devices.

An appellate court reviews the denial of a motion for acquittal de novo, 

applying the same standard used by the trial judge. State v. Williams, 218 N.J. 

576, 593-94 (2014). "We must determine whether, based on the entirety of the 

evidence and after giving the State the benefit of all its favorable testimony 

and all the favorable inferences drawn from that testimony, a reasonable jury 

could find guilt beyond a reasonable doubt." Id. at 594 (citing State v. Reyes, 

50 N.J. 454, 458-59 (1967)). The reviewing court "must consider only the 

existence of such evidence, not its 'worth, nature, or extent.'" State v. Brooks, 

366 N.J. Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. 

Super. 336, 342 (App. Div. 1974)). 

At trial, the State relied on accomplice liability and conspiratorial 

liability. Accordingly, the trial judge charged the jury on both vicarious 

liability theories. 

Accomplice liability attaches if defendant shares with the principal actor 

the same criminal intent and defendant "participated or assisted in the 

commission of the criminal act." State v. Daniels, 224 N.J. 168, 179 (2016) 
27 A-5556-16

(citing State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993)); see 

also State v. Maloney, 216 N.J. 91, 105 (2013); State v. Whitaker, 200 N.J. 

444, 457-58 (2009); N.J.S.A. 2C:2-6(c). Accordingly, to be an accomplice, a 

defendant must have the necessary intent and the State must prove beyond a 

reasonable doubt that defendant "at least indirectly participate[d] in the 

commission of the criminal act." Maloney, 216 N.J. at 105 (quoting Whitaker, 

200 N.J. at 459); see also State v. Lassiter, 348 N.J. Super. 152, 162-63 (App. 

Div. 2002). 

Conspiratorial liability is imposed for "the acts of others that constitute a 

reasonably foreseeable risk arising out of the criminal conduct undertaken to 

effectuate [a] conspiracy, and occurring as the necessary or natural 

consequences of the conspiracy." State v. Bridges, 133 N.J. 447, 468 (1993). 

"[C]onspirators are treated as accomplices under N.J.S.A. 2C:2-6, and hence 

are guilty of the same substantive offense[s] as the principal." State v. Cagno, 

409 N.J. Super. 552, 577 (App. Div. 2009) (quoting State v. Taccetta, 301 N.J. 

Super. 227, 243 (App. Div. 1997)); see also State v. Schmidt, 110 N.J. 258, 

259, 273 (1988) (explaining State's proofs in a given case may "sustain [a 

defendant's] liability for possession as an accomplice or conspirator," even 
28 A-5556-16

where defendant never possessed the prohibited item); State v. Roldan, 314 

N.J. Super. 173, 188 (App. Div. 1998) (acknowledging same). 

The evidence presented during defendant's trial allowed the jury to 

reasonably find that defendant was guilty of all the charges beyond a 

reasonable doubt. In that regard, the communications between defendant and 

co-defendant Graziano were evidence that they were involved in an ongoing 

conspiracy. The instant messaging chats between defendant and Graziano 

allowed the jury to conclude that defendant intended Graziano carry out the 

two arsons and attempted arson, and that he promoted or facilitated Graziano's 

crimes. Indeed, defendant acknowledged that he "egged" Graziano on.

The evidence at trial also allowed the jury to reasonably conclude that 

defendants were in a conspiracy to commit arson and to fire-bomb synagogues. 

Defendant acknowledged that he told Graziano to look for instructions on 

preparing Molotov cocktails online. During their chats, defendant and 

Graziano then discussed using Molotov cocktails on the three synagogues. 

Regarding the Rutherford synagogue, defendant advised Graziano that he 

should first throw a large rock through a window and then throw a Molotov 

cocktail. That evidence allowed the jury to find beyond reasonable doubt that 
29 A-5556-16

defendants were in a conspiracy and, therefore, defendant could be guilty of all 

the charges that were submitted to the jury.

6. The Motion to Disqualify the BCPO

Next, defendant argues that the trial court erred by failing to disqualify 

the entire Bergen County Prosecutor's Office from this case after defendant 

was charged with conspiracy to murder a BCPO assistant prosecutor. 

Defendant asserts that there was an appearance of impropriety and that 

reasonable persons could doubt the BCPO's ability to be objective and fair. 

We disagree. 

We review disqualification issues de novo. City of Atlantic City v. 

Trupos, 201 N.J. 447, 463 (2010). "Attorneys who serve as counsel for 

governmental bodies must avoid not only direct conflicts of interests, but any 

situation which might appear to involve a conflict of interest." In re Op. No. 

415, 81 N.J. 318, 324 (1979) (citation omitted). Following amendments to the 

Rules of Professional Conduct in 2004, our Supreme Court generally 

abandoned the "appearance of impropriety" standard as too vague a criterion 

for evaluating a disqualifying conflict of interest. In re Sup. Ct. Advisory 

Comm. on Pro. Ethics Op. No. 697, 188 N.J. 549, 552, 568 (2006); State v. 

Hudson, 443 N.J. Super. 276, 288 (App. Div. 2015). Nevertheless, courts 
30 A-5556-16

retain the authority "to take corrective action when the risk of improper 

conflict threatens the administration of justice." State v. Faulcon, 462 N.J. 

Super. 250, 256-57 (App. Div. 2020) (quoting Sup. Ct. of N.J., Administrative 

Determinations in Response to the Report and Recommendation of the 

Supreme Court Commission on the Rules of Professional Conduct, comm'n 

cmt. on RPC 1.7 (Sept. 10, 2003), reprinted in Michels, New Jersey Attorney 

Ethics, Appendix A1 at 1250 (2020)).

We discern neither an appearance of impropriety nor a conflict of 

interest in the BCPO handling the case against defendant and Graziano. The 

BCPO removed the assistant prosecutor who was actually threatened and he 

did not try the case. We believe that cured any potential appearance of 

impropriety or conflict of interest. To rule otherwise would allow defendants 

to make threats against a prosecutor's office and then require the matter to be 

shifted to another prosecutor's office or to the Office of the Attorney General. 

Prosecutors and assistant prosecutors hold the responsibility to indict 

and prosecute crimes involving many different types of criminal activity. In 

exercising that responsibility, prosecutors and assistant prosecutors are 

sometimes threatened or implicitly threatened by defendants or people acting 

in concert with defendants. Accordingly, to warrant disqualification, there 
31 A-5556-16

must be a showing of a real ground for questioning the entire prosecutor's 

office's appearance of impropriety or a conflict of interest. See State v. 

Harvey, 176 N.J. 522, 529 (2003); see also State v. Irizarry, 271 N.J. Super. 

577, 593-601 (App. Div. 1994) (declining to disqualify entire prosecutor's 

office where one staff member was likely to be a necessary witness). That 

standard does not depend on the actions or threats of the defendant; rather, it 

focuses on the actions or omissions of the prosecutor's office. See Irizarry, 

271 N.J. Super. at 591-92. Here, there is nothing in the record to question the 

impartiality of the entire BCPO, nor is there a conflict of interest. 

7. The Verdict Sheet

Finally, defendant contends that the verdict sheet was lost and, therefore, 

he is not able to determine the factual basis for the jury's determination on his 

convictions and, in particular, the terrorism convictions.

This argument lacks merit. The jury returned its verdict on the record. 

The foreperson confirmed that the verdict was unanimous. The trial court then 

reviewed with the foreperson each of the charges and the foreperson, on the 

record, announced the jury's verdict. With regard to the charge of terrorism, 

the foreperson confirmed the jury unanimously found defendant guilty as to 
32 A-5556-16

the third scenario listed on the verdict sheet. The jury was then polled, and 

they all confirmed their unanimous verdicts. 

Moreover, we note that it is not clear on the record presented to us why 

the jury verdict sheet could not be located. What is clear, however, is that the 

jury announced its verdict consistent with the verdict sheet and if needed the 

trial court could reconstruct and settle that part of the record. See R. 2:5-5.

In summary, we have evaluated but rejected all of defendant's arguments 

challenging the jury verdict. Accordingly, all his convictions are affirmed.

Affirmed.