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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3001-04T43001-04T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DALE ANDREWS,
Defendant-Appellant.
Submitted November 1, 2006 - Decided November 28, 2006
Before Judges Lefelt, Parrillo and
Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 03-01-0070.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Mark Zavotsky,
Designated Counsel, on the brief).
Jeffrey S. Blitz, Atlantic County Prosecutor,
attorney for respondent (Peter J. Gallagher,
Assistant County Prosecutor, of counsel and
on the brief).
PER CURIAM
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a3001-04.opn.html
Defendant Dale Andrews is serving a five-year sentence, with an eighteen-month period of parole
ineligibility, and a consecutive fourteen-month sentence for two counts of criminal mischief, one in the third-
degree and the other in the fourth-degree. Defendant, on appeal, advances several points in an attempt to justify
reversal of his conviction and sentence. These include prosecutorial misconduct during cross-examination of a
defense witness, violation of defendant's confrontational rights by precluding inquiry regarding complainant's
mental health evaluation, erroneous admission of other-crimes evidence, and erroneous imposition of consecutive
and unconstitutional prison terms.
Because of the appeal points defendant has raised, we need not present the facts in any great depth. It is
sufficient to note that defendant's convictions arose from an arson that destroyed a shed belonging to
complainant, a former friend of defendant with whom defendant had a fairly lengthy history of harassment and
altercations. In fact, at the time of this incident, a domestic violence restraining order precluded defendant from
being in the presence of his former friend. According to the complainant, the fire began with an explosion shortly
after defendant, who had been drinking, angrily left complainant's house, which he had entered without invitation,
exclaiming, "I'm going to fuck something up." Besides destroying the shed, the fire also damaged a neighbor's fence
and deck. Acting upon the complainant's identification of defendant, the police arrested defendant near the scene
of the arson.
All of defendant's arguments on appeal, referenced summarily above, except for his State v. Natale, 184 N.J.
258, (2005), argument, lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We nevertheless provide a
brief explanation pertaining to each of the appeal points.
At defendant's trial, defense counsel called only one witness, an investigator and probation officer employed by the
State, who had investigated the crime scene. On cross-examination, the State asked the investigator whether her
"employer is the Office of the Public Defender." The trial judge upheld defense counsel's immediate objection, and
informed the jury that the comment was to be "stricken from the record," and was "absolutely inappropriate." The
State apologized for the comment, stating it was "not purposeful or deliberate." At that time, defendant made no
request for a mistrial.
Defendant, nevertheless, before us claims the question constituted prosecutorial misconduct warranting a new trial.
This is simply not so. See State v. Frost, 158 N.J. 76, 83 (1999) (requiring reversal only where prosecutorial
misconduct is "so egregious that it deprived the defendant of a fair trial"); State v. Moore, 111 N.J. Super. 528, 533
(App. Div.) (concluding that a prosecutor's reference to the Public Defender's Office does not warrant a mistrial),
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a3001-04.opn.html
certif. denied, 57 N.J. 210 (1970). To the extent that the cross-examination question attacked the credibility of the
witness it was proper.
Defendant further claims that the trial judge improperly precluded inquiry into the complaining witness's mental
health evaluation, finding the information contained therein to be privileged. However, defendant made an
inadequate showing to pierce the privilege, as he failed to demonstrate "a legitimate need" to obtain the evidence,
failed completely to show its "relevance and materiality," and also failed to demonstrate that the "information could
not be secured from any less intrusive source." In re Kozlov, 79 N.J. 232, 243-44 (1979).
The defendant next complains that the trial court erred in admitting "other crimes" evidence. Here also, defendant is
wrong. The evidence met the State v. Cofield, 127 N.J. 328, 338 (1992), standard, and the court correctly balanced
the competing interests.
Although defendant further complains of the consecutive sentence, he is once again wrong. The sentencing judge
imposed the sentence because there were two separate victims. Even though the judge articulated only one of the
relevant factors to be considered in imposing consecutive sentences, we cannot say that the sentence violates State
v. Yarbough, 100 N.J. 627, 644 (1985). See State v. Carey, 168 N.J. 413, 429 (2001).
Finally, we note that the judge imposed the maximum sentence for a third-degree crime and that he found
aggravating factors (3), (6), and (9). Consequently, defendant is entitled to resentencing pursuant to State v. Natale,
supra, 184 N.J. Super. at 495-96; and State v. Thomas, 188 N.J. 137, 152 (2006).
Remanded for resentencing, affirmed in all other respects.
(continued)
(continued)
5
A-3001-04T4
November 28, 2006
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