Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
A grand jury jointly indicted defendant and one Robert Nathan Scott on seven counts: I, committing mayhem, in violation of N.J.S.A. 2A:125-1; II, conspiracy to commit mayhem, in violation of N.J.S.A. 2A:125-1, 2A:98-1 and 2; III, atrocious assault and battery, in violation of N.J.S.A. 2A:90-1; IV, conspiracy to commit atrocious assault and battery, in violation of N.J.S.A. 2A:90-1, 2A:98-1 and 2; V, possessing a "dangerous deadly instrument, to wit, acid or other toxic substance, with intent to use unlawfully against another," in violation of N.J.S.A. 2A:151-56; VI, malicious destruction of personal property, in violation of N.J.S.A. 2A:122-1, and VII, conspiracy to maliciously damage property, in violation of N.J.S.A. 2A:122-1, 2A:98-1 and 2.*fn1
On application of the prosecutor the judge granted a severance of defendant and Scott for the purpose of trial. R. 3:15-2(b). During the course of a four-day trial the judge
dismissed counts I, II and VII. The jury acquitted defendant of the charge contained in count V and convicted him of atrocious assault and battery (count III), conspiracy to commit atrocious assault and battery (count IV) and malicious destruction of property (count VI).
After unsuccessful post-conviction motions for judgment of acquittal, a new trial, merger of counts III and IV, to sentence only on count III rather than on each of counts III and IV and to mold the verdict on count VI to a disorderly persons conviction under N.J.S.A. 2A:170-36, the judge imposed sentences as follows: on count III, atrocious assault and battery, 6-7 years in State Prison; on Count IV, conspiracy to commit assault and battery, 2-3 years in State Prison, consecutive to the sentence imposed on count III, and on count VI, malicious destruction of property, 2-3 years in State Prison, consecutive to the sentence on count III, for an aggregate term of 10 to 13 years. Defendant then initiated this appeal.
The victim of the crimes found by the jury to have been committed by defendant was a Grover Smith. The jury could reasonably deduce from the evidence produced before it that Smith was having an affair with defendant's wife. In the spring of 1974 defendant confronted Smith with his knowledge of their meetings and demanded that Smith stop seeing Mrs. Maddox. Defendant thereafter sought revenge against Smith. He enlisted the aid of Scott (obviously mentally retarded) to damage Smith's vehicle. He agreed to pay Scott $75 to perform this act. After Scott vandalized the vehicle defendant paid him $90. On the the evening of August 19, 1974 Scott was driven by one Braswell, a friend, to where Smith's car was parked on Spruce Street in Boonton. Scott then punctured all four tires with an ice pick and threw a rock which destroyed the windshield.
Following this incident defendant told Scott that he wanted him to slash Smith's face with a razor. Subsequently, when Scott told defendant that he feared that if he "raked" Smith's face with a razor he might be recognized, defendant
suggested that he would procure acid if Scott would throw it in Smith's face. Later either Scott procured a jar of battery acid from a garage where he occasionally worked or defendant provided him with the acid. Scott agreed to throw it in Smith's face on defendant's promise to pay him $500. Defendant then described Smith and pointed him out.
On the evening of September 20, 1974, at about 11:30, Scott lay in wait, hidden by some bushes close by to Smith's house. When Smith came out of his house to go to work, Scott ran up behind him and threw acid from a bottle into Smith's face.*fn2 Later defendant praised Scott for doing a good job and paid him the agreed amount of $500. In addition to the payments to Scott, defendant also paid $125 to Braswell to leave town.
As a consequence of this latter incident both of Smith's eyes were enucleated. He received a skin graft for the left side of his face and underwent an operation in order to open the side of his mouth.
Defendant first contends that the judge erred in denying his application to sever the damage to the automobile counts from the counts pertaining to the assault on Smith. We disagree.
R. 3:7-6 permits multiple offenses to be charged in the same indictment where they "are of the same or similar character or are based upon the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme." A judge is vested with discretion in determining whether a severance should be granted. State v. Sinclair , 49 N.J. 525, 550 (1967). Ordinarily, whether the judge's discretion should be exercised favorably toward a severance depends upon whether either the State or defendant is prejudiced by a joinder of defendants for the purpose of trial. R. 3:15-2(b).
Of course, the trial of multiple charges always involves "some potential of harm," since the multiplicity alone may
possibly suggest to the factfinder a propensity to criminal conduct. State v. Manney , 26 N.J. 362, 368 (1958). However, other important considerations -- economy and judicial expediency -- must be weighed in making the determination. State v. Aiello , 91 N.J. Super. 457, 466 (App. Div. 1966), certif. den. 48 N.J. 138 (1966), cert. den. 388 U.S. 913, 87 S. Ct. 2106, 18 L. Ed. 2d 1351 (1967).
In the present case the victim of the crimes was the same person, the witnesses were substantially the same persons and the motive and intent as well as the scheme or plan of defendant were common to all charges. See Evid. R. 55; Drew v. United States , 118 U.S. App. D.C. 11, 331 F.2d 85 (D.C. Cir. 1964). Primarily for these reasons the cases relied on by defendant are distinguishable and lack precedential value.
Finally, our review of the judge's charge discloses that each count was separately discussed, with the clear indication to the jury that each should be considered separately and apart from the ...