Lora, Handler and Tarleton. The opinion of the court was delivered by Handler, J.A.D.
[133 NJSuper Page 567] A four-count indictment returned by the state grand jury charged that (1) defendants Joseph Moriarty and Shirley Marie Watford a/k/a Shirley Marie Dawson (hereinafter Watford) conspired to possess lottery paraphernalia, in contravention of N.J.S.A. 2A:98-1 and N.J.S.A. 2A:98-2; (2) Moriarty did knowingly possess
lottery paraphernalia, in contravention of N.J.S.A. 2A:121-3(b); (3) Watford did knowingly possess lottery paraphernalia, in contravention of N.J.S.A. 2A:121-3(b), and (4) Moriarty did willfully and knowingly commit an assault and battery upon a law enforcement officer, in contravention of N.J.S.A. 2A:90-4. Prior to trial a motion to suppress evidence was made by defendants, which was denied. Defendants were then jointly tried and the jury found them guilty as charged on all four counts of the indictment.
Moriarty was sentenced to the New Jersey State Prison for concurrent terms of 2 1/2 to 3 years and separate fines of $1,000 on the two gambling counts; and a consecutive 1 to 2 years and a $1,000 fine on the fourth count for the assault on a police officer. Watford was sentenced to the Hudson County Penitentiary to concurrent terms for 1 year, 4 months to be served in custody, with 8 months suspended and 2 years probation for the gambling charges. Defendants each filed a notice of appeal from their convictions, which appeals were consolidated.
Defendant Watford contends that she was not accorded a fair trial or a trial by an impartial jury. She asserts that she was entitled to a mistrial, or at the very least a severance should have been granted, because of a newspaper article appearing in the New York Daily News during trial. It is her contention that the combination of this newspaper article with "Newsboy" Moriarty's reputation presented a "substantial probability" that her due process right to a fair trial was subverted.
Upon being informed of the existence of this article the trial judge conducted a voir dire of all members of the jury. By the time the last juror was questioned it was clear that none of them had read the article or knew of its existence. In addition, it was discovered that, although a copy of the Daily News had been brought into the jury room, this edition did not contain the offending article.
It is within the discretion of the trial judge whether to grant severance or any other appropriate relief where prejudice is alleged. R. 3:15-2(b); State v. Sinclair, 49 N.J. 525, 550 (1967); State v. Yedwab, 43 N.J. Super. 367, 380 (App. Div.), certif. den. 23 N.J. 550 (1957). A denial of severance by a trial court will not be disturbed upon appeal unless there is a clear showing of abuse of discretion. State v. Rios, 17 N.J. 572, 584 (1955); State v. Yormark, 117 N.J. Super. 315 (App. Div. 1971), certif. den. 60 N.J. 138 (1972). The trial judge committed no error in ruling that no prejudice was suffered by defendant and that neither a severance nor a mistrial was justified by virtue of the newspaper article.
Watford also contends that it was prejudicial for her to have been tried jointly with Moriarty because of inevitable jury bias attributable to the fact that he was a notorious gambler. No timely motion for severance on this ground, however, was made and she failed utterly to demonstrate that any juror was biased because of Moriarty's notoriety.
This defendant also questions whether prejudice was created by the trial judge in ordering a sequestration of the jurors. Whether or not the jury is to be sequestered lies in the sound discretion of the trial court. His decision will not be disturbed on appeal, save for abuse of discretion. Koolish v. United States, 340 F. 2d 513, 528 (8 Cir. 1965), cert. den. 381 U.S. 951, 85 S. Ct. 1805, 14 L. Ed. 2d 724 (1965); Estes v. United States, 335 F. 2d 609, 615 (5 Cir. 1964); cert. den. 379 U.S. 964, 85 S. Ct. 656, 13 L. Ed. 2d 559 (1965). In light of the circumstances it cannot be said that the trial judge abused its discretion in this respect.
Defendant Moriarty contends that the application for a search warrant based upon an ...