At van der Veen, Hartshorn, Levin & Lindheim, our commitment to justice is at the forefront of everything we do. As such, we’re pleased to announce that, on July 28, 2025, we received a favorable decision from the Appellate Division to reverse our client’s conviction and that he will be getting a new trial to prove his innocence.
“Today was a big win for our client, who was deprived of the opportunity for a fair trial and has spent the last two years in prison challenging the verdict,” criminal defense attorney Kaitlin McCaffrey said. “The Appellate Division recognized the unfairness of what occurred, and as a result, our client was afforded a second chance to prove his innocence.”
Incident Leading Up to Our Client’s Arrest
On January 25, 2021, our client, Gary P. Prichard, was on his way home from work when he got into an altercation with Marilyn Contreras. While at a stop sign waiting to make a left turn, Contreras, who was attempting to cross the street, had allegedly stopped to look at her phone. When Prichard honked at Contreras, she dropped her phone and started cursing and screaming at him. According to Prichard’s testimony, Contreras allegedly kicked the rear passenger side of his truck.
Though he continued driving, Prichard admitted to getting “really mad” and decided to turn around to confront Contreras, eventually pulling up alongside her outside of a restaurant. A verbal altercation ensued. While admitting to being belligerent to Contreras, Prichard testified that he pulled out a fake gun from his center console when she started approaching his vehicle. He then proceeded to tell her to get away from his truck over fears she was going to kick it again. Per Prichard, he never aimed the gun at Contreras; however, upon seeing it, she screamed and hid behind a pile of cardboard boxes nearby. According to Prichard, the intended purpose of the fake gun was to stop problems before they escalated. After the altercation, he drove away.
Following the incident, a restaurant employee called the police and described Prichard and his vehicle. According to her testimony, she had seen and heard a woman [Contreras] crying. However, she did not see any part of the altercation between Prichard and Contreras.
Detective Walcott collected video surveillance footage from nearby businesses, residents, and Rutgers University (New Brunswick) to identify Prichard’s vehicle. However, the footage did not capture evidence of the altercation between him and Contreras.
Upon identifying his vehicle, law enforcement obtained and executed a search warrant on our client’s truck, finding a starter pistol loaded with blank rounds. He was then charged with attempted kidnapping and possession of a weapon for an unlawful purpose.
Allegations of Witness Tampering
At the time of Prichard’s arrest, he admitted to dating two women, Zoe Capaldo, who he was planning to meet on the night of the altercation, and Diana Perez. Prichard testified to changes in Perez’s demeanor since meeting in September 2020, claiming that she had started doing hard drugs after reconnecting with an old friend. Prichard, who claimed to detest drugs after losing a family member to them, detailed his relationship with Perez as tumultuous. On Father’s Day in June 2021, he informed Perez to stop calling and texting him, to which she, in turn, allegedly told him that “he was going to regret breaking up with her.” Prichard recalled two heated arguments with Perez in July and August 2021, in which she had shown up unannounced at the bars he was visiting. She entered rehab shortly after in August 2021.
A month later, in September 2021, Perez went to the New Brunswick Police Department to give a statement to Detective Walcott. She claimed that Prichard had asked her to find Contreras and offer her $5,000-$10,000 to drop the charges against him. When that allegedly failed, Perez claimed that Prichard then asked her to find someone to get rid of the girl [Contreras]. Following these allegations, Prichard was then charged with witness tampering.
Following the grand jury’s indictment on all three charges, Prichard’s defense counsel moved to sever the witness tampering charge, arguing that there was a substantial risk of prejudice because “it was basically a he said/she said” case. It was argued that the outcome of the underlying case would hinge on who the jury found to be more credible. Prichard asserted that it would be prejudicial to then have to litigate the allegations from a “scorned” ex-girlfriend with drug issues that were made months after the incident involving Contreras.
A N.J.R.E 104 hearing was held, and afterward, the Court decided that Perez’s statements were admissible. As such, the Court rejected Prichard’s claim that there would be undue prejudice if Perez’s comments were used at trial and denied the motion to sever the witness tampering charges from the others.
Witness Testimony Led to Jury Prejudice
Prichard’s trial began in June 2023. On the first day, the restaurant employee who had initially called the police following the altercation with Contreras testified about the incident and identified Prichard for his involvement. However, things took a turn on the second day of trial when Perez took the stand.
During her testimony, she recounted her allegations that Prichard wanted to bribe Contreras to drop the charges against him. According to Perez, Prichard had asked her to find someone to “rough” her [Contreras] up, then asked if she could find someone to kill her if Perez couldn’t adhere to the first request. Following this request, Perez claimed that she had “locked herself in her room and began using drugs for an extensive period of time.” Once out of rehab, Perez stated she went to local law enforcement, claiming she would use drugs if she continued keeping this information to herself. Originally, Perez claimed that she did not want Prichard to know she was in recovery due to his personal feelings on drug use. However, during examination, she admitted to defense counsel that Prichard used cocaine, and revealed a prior DWI arrest and conviction. The judge directed the jury to disregard Perez’s answer following an objection from the defense.
Throughout her testimony, Perez revealed allegations of a potential threesome with Prichard, Capaldo, and herself, and also made unsolicited remarks about his affiliation with the notoriously violent Pagan motorcycle gang. Perez also testified that she told Detective Walcott about Prichard’s Pagan affiliation. The judge directed the jury to dismiss this information, as well.
Following a sidebar in which it was acknowledged that Perez had compromised the case three times, defense counsel requested a mistrial. The judge said, “I’m going to reserve on that,” however, never formally ruled on the mistrial motion. On the third day of trial, Prichard disputed Contrera’s version of events, saying that due to everything that followed, confronting her was “probably the worst decision of his life.” He denied Contrera’s allegation that he told her to get into his vehicle, as well as Perez’s claim that he wanted to bribe her. Per Prichard, he did not have any money following his release from jail. He also called Perez’s claim that he wanted to find someone to kill Contrera “100 percent…made-up, delusional lies.”
Jury Verdict
Following the trial, the jury found Prichard guilty of attempted kidnapping and possession of a weapon for an unlawful purpose. However, he was found not guilty on the charge of witness tampering.
When the State moved to revoke Prichard’s release pending his sentencing, his defense counsel objected, arguing in favor of a mistrial because Perez had inappropriately testified that Prichard was a member of the Pagan biker gang. At the time, the judge who originally presided over the case was not available, and the substitute judge declined to override the decision despite defense counsel stating that the original judge said he wasn’t going to issue a mistrial “at that time.”
In October 2023, Prichard was sentenced to eight years for the second-degree attempted kidnapping charge and one year for the fourth-degree possession of a deadly weapon for an unlawful purpose charge. These sentences were to run concurrently. Under the No Early Release Act, Prichard is required to serve 85% of his prison term.
The Court’s Decision and Reversal
Since his sentencing, Prichard had been trying to appeal his conviction and raised the following points, alleging that:
- The trial court should have granted a mistrial due to highly prejudicial and unsolicited witness testimony.
- The court erred in denying the motion to sever the witness tampering charge from the underlying offenses.
- The sentence imposed was excessive and failed to account for mitigating factors.
On July 28, 2025, the Appellate Division reinforced Prichard’s right to a fair trial free from undue prejudice. The Court overturned his convictions for second-degree attempted kidnapping and fourth-degree unlawful possession of a weapon, finding that the trial court failed to properly address the harmful effects of inadmissible testimony, ultimately compromising the integrity of the jury’s verdict.
The appellate panel concluded that the trial judge’s attempt to counteract unsolicited, prejudicial remarks from a witness, who claimed Mr. Prichard was associated with the Pagan motorcycle gang, did not meet established legal standards. The witness had also made repeated, unsolicited references to drug use and a past DWI conviction, which the Court found irrelevant and highly damaging in a case that relied heavily on credibility due to a lack of physical evidence or eyewitness testimony.
The Court emphasized that such prejudicial statements, even when followed by general instructions to disregard them, pose a serious risk of unfairly influencing the jury’s perception of the defendant’s character. Compounding the issue, the trial judge never issued a ruling on the defense’s motion for a mistrial, further weakening trust in the verdict.
Referencing State v. Herbert and State v. Winter, the Court reaffirmed that vague or generic curative instructions are inadequate when prejudicial testimony may lead jurors to see the defendant as inherently criminal. In these situations, the Court held that either a prompt and detailed instruction or a mistrial is necessary to protect the defendant’s right to a fair trial.
As a result, the panel reversed Mr. Prichard’s convictions and ordered a new trial. Since he had already been acquitted of the witness tampering charge, the severance issue was deemed irrelevant, and the Court chose not to address the sentencing matter.