State v. Almonte – Severance of Trial

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

State v. Almonte

Appellate Docket No.: A-0536-18

Decided July 27, 2021

In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether failure to sever a trial from a codefendant was appropriate, even when the codefendant was not present for the trial and his post arrest statements were admitted to evidence.

In State v. Almonte, Agent Chapman testified that during a sting operation conducted in late 2015 to early 2016, the DEA obtained a phone number and a code word to contact a suspected crew operating out of Philadelphia that robbed drug dealers. Because the identity of the crew members was unknown, the DEA gave the phone number to a paid CI to identify the members and infiltrate the crew.

On December 29, 2015, at the behest of the DEA, the CI contacted an individual identified as co-defendant Oviedo-Difo at the phone number acquired during the investigation. Once the CI confirmed that co-defendant Oviedo-Difo was interested in participating in a robbery, the CI arranged a meeting in New York to discuss a fabricated robbery of a stash house in the Bronx. The phone conversation between the CI and co-defendant Oviedo-Difo to arrange the meeting was recorded. According to Chapman, the DEA planned to arrest the crew members when they arrived to rob the stash house.

The CI testified that co-defendant Oviedo-Difo and an individual later identified as defendant attended the prearranged meeting in Manhattan. During the meeting, the CI informed defendants he had a contact inside an apartment containing money and drugs, and that the contact would give them access to the apartment for the robbery. The CI told defendants he would call them the day before the planned robbery and asked them how they would commit the robbery. According to the CI, co-defendant Oviedo-Difo responded that they would bring “tape and a ski mask.” When the CI specifically asked if they were “coming with guns,” both defendants responded “[o]f course” as they anticipated that the apartment occupant would be armed. The CI suggested that defendants “wear a hat and a hoodie” to conceal their identities.

The New York meeting took place in an SUV parked at a prearranged location, lasted approximately twenty minutes, and was secretly recorded by the CI, who was seated in the back seat next to defendant and had an unobstructed view of defendant. Co-defendant Oviedo-Difo sat in the driver’s seat and an unidentified male sat in the front passenger seat. The audio recording of the meeting was played for the jury during the trial and a transcript was provided as an aid.

A few weeks after the meeting, the CI called co-defendant Oviedo-Difo and told him that everything was set for the following day. On the day of the planned robbery, January 20, 2016, co-defendant Oviedo-Difo told the CI in a phone conversation that they were “getting ready to leave.” Throughout the day, Oviedo-Difo and the CI continued to communicate via telephone and the conversations were recorded.

Defendants traveled from Philadelphia in co-defendant Oviedo-Difo’s vehicle to meet the CI for the robbery in New York. However, while en route, the car began to overheat, and, at about 4:00 p.m., Oviedo-Difo told the CI that he had to pull off at a rest stop on the New Jersey Turnpike. At the request of the DEA, members of the New Jersey State Police responded to the Grover Cleveland Rest Area and arrested defendants when they observed them approach the disabled vehicle described to the officers by the DEA. Although the vehicle was not surveilled when it left Philadelphia, the DEA was aware of its location through the telephonic communications between the CI and co-defendant Oviedo-Difo.

After obtaining consent from co-defendant Oviedo-Difo, the registered owner of the vehicle, Detective Czech testified that he and other unit members searched the vehicle, beginning at 6:35 p.m. The search uncovered a semiautomatic Smith and Wesson handgun2 loaded with a large capacity magazine and hollow-point bullets hidden inside a sock secreted behind the radio in the “dashboard center console compartment” of the vehicle. Neither defendant had a permit for the gun. Suspected robbery tools consisting of two black ski masks, black gloves, duct tape, zip ties, and a black hooded sweatshirt were found on the backseat. In the rear portion of the vehicle, officers recovered a bag of suspected burglary tools consisting of screwdrivers, pliers, socket wrenches, and the like.

Defendant was convicted for robbery and appealed, arguing the judge erred in denying his pre-trial motion to sever his trial from co-defendant Oviedo-Difo, who “had absconded from the country” and “was not expected to return.” Defendant continues that “[e]ven if one were to overlook this error, there was no justification for the court allowing the use of Oviedo-Difo’s post-arrest statement to inculpate [defendant].”

Two or more defendants may be charged and tried jointly “if they are alleged to have participated in the same act or transaction” constituting the offense. Indeed, under those circumstances, a joint trial is “preferable” because it serves judicial economy, avoids inconsistent verdicts, and allows for a “more accurate assessment of relative culpability.” [State v. Weaver, 219 N.J. 131, 148 (2014) (quoting State v. Brown, 118 N.J. 595, 605 (1990)); see R. 3:7- 1 (indictment); R. 3:15-1 (trial).] However, “[i]f, for any reason, it appears that a defendant . . . is prejudiced by the joint trial, the trial court may sever.” Id. at 148-49 (citing R. 3:15-2(b)).

The Appellate Division found that codefendant’s absence from the trial did not require the severance of the defendant’s trial. Using his statements during defendant’s trial, however, was more problematic. Those statements though tended to exculpate the defendant rather than incriminate him, thus while the Appellate Division found that there was an error, it was a harmless error.

If you or someone you know have been charged with any indictable offense or disorderly persons, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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