State v. Leeks

1

STATE OF NEW JERSEY, Plaintiff-Appellant, v. SALAAM LEEKS, Defendant-Respondent

No. A-3924-21

Superior Court of New Jersey, Appellate Division

June 21, 2023

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.

Submitted June 6, 2023

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Indictment No 16-06-1828.

Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for appellant (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Respondent has not filed a brief.

Before Judges Messano, Gilson and Rose.

PER CURIAM

We granted the State's motion for leave to appeal from a July 1, 2022 Law Division order that severed sexual assault and related charges allegedly committed by defendant Salaam Leeks upon three different women during an eight-month time frame at defendant's residence in Newark. The decision to sever was based on the motion judge's terse determination that the offenses were neither similar in kind nor overlapping, and that joinder of all charges would be "devastating." Because the judge failed to properly assess the State's proffered evidence in view of the governing law, and the record provided on appeal impedes our review of that evidence, we vacate the severance order and remand for further proceedings.

I.

We summarize the State's allegations and procedural history from the minimal record provided on appeal.^[1] The State asserts that between May 2015 and January 2016, defendant sexually assaulted three women, C.D., K.M., and A.J.^[2] Allegedly defendant separately convinced each victim that - unless she engaged in sexual relations with him - gang members would rape and beat or kill her because her ex-boyfriend or child's father had angered the gang in some unspecified manner (the ruse).

The allegations against defendant first came to light on May 15, 2015, when C.D. reported to police she was sexually assaulted by "Abdul Salaam." According to the State, C.D. asserted the day after she met defendant, he called asserting the ruse. When she refused to engage in sexual relations, defendant allegedly claimed her family members also were in danger.

At some point thereafter, C.D. acquiesced and defendant allegedly twice sexually assaulted C.D. by penile-vaginal penetration. Defendant then called C.D. "numerous times asking her to come over to his apartment." C.D. reported because she feared the potential consequences if she did not comply, she went to defendant's home. While there, "C.D. grew suspicious"; "took [defendant]'s phone"; and viewed text messages that implied only defendant was "behind the threats." C.D. claimed they argued then defendant sexually assaulted her by penile-vaginal penetration. After this final incident, defendant repeatedly texted C.D., implying gang members had "'jumped' [him] because of her."

Six months later, in November 2018, defendant allegedly employed the same ruse against K.M. According to the State, K.M. knew defendant as "Rah" and considered him "a really good friend." After defendant visited her on November 18, 2015, K.M. received a call from a private number, asserting the ruse. The following night, K.M. received another call from a private number asking whether she were "ready to have sex with Rah because he stuck his neck out for her" with the gang members.

The State asserts that when K.M. arrived at defendant's apartment, he initially claimed he did not know why she was there. Later, defendant allegedly said he had "vouched for her and she would no longer be a target [of the gang] because of what her child's father had done." Defendant then allegedly engaged in penile-vaginal intercourse with K.M. "After thirty minutes [K.M.] received a call and was told that she could leave." Thereafter defendant "showed up at her house with what appeared to be blood on his shirt saying that he had taken a beating on her behalf because he had vouched for her."^[3]

Two months later, on January 9, 2016,^[4] defendant allegedly called A.J., identified himself as "Abe," and employed the same ruse. At some point, defendant placed A.J. on a three-way phone call with "Murda" who confirmed the ruse and claimed "because [defendant] had vouched for A.J. he would have to be physically assaulted on her behalf." Both men "described [A.J.]'s son and where she was living." A.J. went to defendant's apartment, where he allegedly claimed "he was really doing this to protect her." Defendant allegedly sexually assaulted A.J. by penile-vaginal penetration.

The State asserts two victims reported defendant was wearing an ankle monitoring bracelet, which led to defendant's apprehension and identification by all three women. It is unclear from the record which victims reported that information. A search of defendant's cell phone revealed calls to two victims but, again, the record does not reveal their identities. The State further asserts a DNA sample recovered from C.D.'s sexual assault kit was consistent with defendant's DNA sample.

Following defendant's arrest, in June 2016, he was charged in a twenty-two count Essex County indictment with similar offenses regarding the allegations. The first nine counts charged defendant with offenses committed upon C.D. between April 1, 2015 and May 14, 2015:

• first-degree aggravated sexual assault by vaginal penetration by force or coercion, while aided or abetted by another, N.J.S.A. 2C:14-2(a)(5);

• second-degree conspiracy to commit aggravated sexual assault by promoting or facilitating the commission of the crime with an unknown coconspirator, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a)(5);

• second-degree conspiracy to commit sexual assault with the purpose of promoting or facilitating the commission of the crime of sexual assault with an unknown co-conspirator, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(c)(1);

• three counts of second-degree sexual assault by vaginal penetration by force or coercion, N.J.S.A. 2C:14-2(c)(1);

• third-degree criminal coercion, N.J.S.A. 2C:13-5(a)(1);

• third-degree terroristic threats, N.J.S.A. 2C:12-3(a);

• and third-degree criminal restraint, N.J.S.A 2C:13-2(b).

Counts ten through fifteen charged defendant with offenses committed upon K.M. between November 18, 2015 and November 27, 2015:

• first-degree aggravated sexual assault by vaginal penetration by force or coercion, while aided or abetted by another, N.J.S.A. 2C:14-2(a)(5);

• second-degree conspiracy to commit aggravated sexual assault by promoting or facilitating the commission of the crime with an unknown coconspirator, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a)(5); • second-degree conspiracy to commit sexual assault with the purpose of promoting or facilitating the commission of the crime of sexual assault with an unknown co-conspirator, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(c)(1);

• second-degree sexual assault by vaginal penetration by force or coercion, N.J.S.A. 2C:14-2(c)(1);

• third-degree criminal coercion, N.J.S.A. 2C:13-5(a)(1); and

• third-degree criminal restraint, N.J.S.A 2C:13-2(b).

The remaining six counts charged defendant with offenses committed upon A.J. on January 9, 2016^[5]:

• first-degree aggravated sexual assault by vaginal penetration by force or coercion, while aided or abetted by another, N.J.S.A. 2C:14-2(a)(5);

• second-degree conspiracy to commit aggravated sexual assault by promoting or facilitating the commission of the crime with an unknown coconspirator, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a)(5);

• second-degree conspiracy to commit sexual assault with the purpose of promoting or facilitating the commission of the crime of sexual assault with an unknown co-conspirator, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(c)(1);

• third-degree criminal coercion, N.J.S.A. 2C:13-5(a)(1);

• third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and

• third-degree criminal restraint, N.J.S.A 2C:13-2(b).

Contending "each fact pattern [was] unique," defendant's retained counsel moved to sever the counts into three sets of charges, grouped by the offenses allegedly committed upon each victim. The State countered the offenses were properly joined under Rule 3:7-6.^[6] Alternatively, the State claimed evidence of the sexual assaults against each victim would be admissible in separate trials under N.J.R.E. 404(b). Citing the four-part Cofield test,^[7] the State argued: (1) the evidence was relevant to prove defendant's identity; (2) the assaults were similar and occurred within less than one year; (3) the evidence was clear and convincing based on the victims' accounts and telephone records; and (4) the probative value was strong while the prejudice to defendant was no different than any other case.

Immediately following oral argument, the judge granted defendant's motion. The judge's decision spanned one transcript page and stated in full:

The test for [N.J.R.E.] 404(b) is generally the same test for a motion to sever counts, just the opposite side of it .... The standard is the same. And it is true that there are parallels, but they are not signature crimes. And they're, therefore, not similar in kind. They bear some likenesses, some parallels, but they are not similar in kind. And I don't believe a hearing would change that. What you seek to establish at a hearing is not sufficient to make them signature crimes.

Furthermore, the evidence is different for each one. None of the evidence is overlapping. You would have to present different evidence for each one because each is a separate crime. Therefore, there's no economy for the court or the State,

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