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State v. Orlando

Decided: June 14, 1968.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGOLO GEORGE ORLANDO, DEFENDANT-APPELLANT



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Defendant appeals from judgments of conviction entered on jury verdicts finding him guilty on each of two counts of an indictment charging him with inducing and forcing two children under the age of 16 to do and to submit to acts tending to impair the morals of the said children, in violation of N.J.S. 2 A:96-3.

Each count of the indictment charged defendant with a separate and distinct offense; the first, alleged to have occurred on April 15, 1966, involving a nine-year-old girl, A; the second, alleged to have occurred on June 16, 1966, involving a seven-year-old girl, K.

Defendant concedes that charging the two offenses in separate counts of one indictment was permissible under R.R. 3:4-7, which provides:

"Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged, whether high misdemeanors or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

While there was neither charge nor proof that the offenses were "based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan," both were "of the same or similar character."

Defendant's principal contention on appeal is that under the circumstances of this case the trial court abused its discretion and committed prejudicial error in denying his pretrial motion under R.R. 3:5-7 to order the two counts tried separately. We agree and reverse.

R.R. 3:5-7, entitled "Relief from Prejudicial Joinder" provides:

"If it appears that a defendant or the State is prejudiced by a joinder of offenses or of defendants in an indictment or accusation or by such joinder for trial together, the court, in its discretion, may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires."

The rule recognizes, as do our cases, the possibility of harm and prejudice in the joint trial of unrelated offenses, see State v. Baker, 49 N.J. 103, 105 (1967), certiorari denied 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2 d 144 (1967); State v. Coleman, 46 N.J. 16, 24 (1965), certiorari denied 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2 d 212 (1966), and affords a method of relief therefrom.*fn* However, application

for a severance is to be made before trial; "after a trial of several charges without objection, it takes a strong showing of probable prejudice in fact to warrant a finding of ...


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