State v. KentState v. Kent
We granted the State‘s motion for leave to appeal from an order dismissing four counts of an eight-count indictment and severing for separate trials three other counts.
Defendant, an attorney, was accused in three of the counts of violating
The substance of defendant‘s argument in support of his severance motion is that since each of the alleged unlawful placements involved a different natural mother and different adopting parents and was “not temporally related and not related to any common scheme or plan,” the cumulative effect of a joint trial would increase his chances of conviction and thus would be prejudicial to him. The State‘s position is that although each placement was a separate incident, the connecting link was a common source of information available to defendant and, in addition, the State intends to establish that defendant was engaged in an ongoing course of conduct of acting as an intermediary in the placement of children for adoption. In granting the severance motion (which included the related charges of obstruction of justice prior to their dismissal), the trial judge, while expressing concern over the time span of approximately a year and a half, was particularly motivated by “the fact that when a defendant is indicted and tried on a series of offenses, allegedly all of the same type, that it has to carry a cumulative force and weight prejudicial to the defendant.”
R. 3:7-6 provides that two or more offenses may be charged in the same indictment in a separate count for each offense if the offenses charged are of the same or similar character. R. 3:15-1 authorizes a joint trial of two or more indictments if the offenses could have been joined in a single indictment. However, where there is a substantial possibility of harm to the defendant if separate and unconnected offenses are tried together, a pretrial motion for severance should not be lightly regarded. State v. Baker, 49 N.J. 103 (1967), cert. den. 389 U.S. 868, 88 S.Ct. 141, 19 L.Ed.2d 144 (1967). But the trial judge‘s rationale in this case is of such breadth that it would bar in all cases the joinder of like offenses at a single trial and thus render the rule ineffective.
More must be demonstrated than the mere claim that prejudice will attach because of a joint trial. See State v. Reldan, 167 N.J. Super. 595, 598 (Law Div. 1979). Here, the argument advanced by defendant is that evidence of the commission of one of the unauthorized placements might induce the jury to find guilt of the others when the evidence as to the latter, if considered separately, might produce a different result. But the three alleged placements in this case appear to be more than merely offenses of a like or similar character. We find persuasive the State‘s response that a common thread binds them together, evidencing such a course of conduct on the part of defendant as to make evidence of the commission of one unauthorized placement relevant as to either or both of the others in order to establish motive, intent, or common scheme or plan. Evid.R. 55. In the circumstances, we do not believe that defendant would suffer any more prejudice in a joint trial than he would in separate trials where the evidence of the other alleged crimes would in all probability be admissible under Evid.R. 55. We are convinced that the trial judge mistakenly exercised his discretion in ordering separate trials for each of the alleged unauthorized placements. To that extent, the order under review is reversed.
We turn next to the dismissal of the four counts charging obstruction of justice. Accepting defendant‘s argument, the trial judge held that the nature of the common law crime of obstruction of justice,
In our view, the prosecution of an offense committed prior to the effective date of the Code is not barred where the forbidden conduct, previously constituting a crime, has been downgraded by the Code to a disorderly persons offense. See State v. Glass, 171 N.J. Super. 157 (Law Div. 1979). Nor may the accused now be prosecuted only on the downgraded charge. It is clear to us that the prosecution in such case should be for the offense charged in the indictment. If the penalty would be less for a comparable offense under the Code, the court is authorized upon a defendant‘s conviction, with his consent, to “impose sentence under the provisions of the Code applicable to the offense and the offender.”
We reject the trial judge‘s concept that the common law crime of obstruction of justice is not an offense under the Code.
Defendant is accused in the second, third and fourth counts of “contriving and intending to obstruct, hinder and impede the due course of public justice” by unlawfully seeking to induce others, in connection with an investigation of the child placements, to “mislead said investigation and to not tell the persons conducting said investigation the true and complete
The wide sweep of the common law crime of obstruction of justice has been significantly narrowed in the Code. The proscribed conduct, restricted in scope, is now classified as a disorderly persons offense.
The alleged conduct which is the subject matter of the seventh count is that defendant himself sought to mislead the investigation by failing fully and truthfully to disclose his participation in the placement under investigation. This conduct clearly is not of the kind referred to in
Paragraph (1) of the order under review is reversed. Paragraph (2) of said order, except with respect to count 7, is also reversed, and counts two, three and four are reinstated. The remainder of the order is not encompassed within this appeal.