Allcorn, Morgan and Horn.
Out of three incidents which occurred on May 8 and 9, 1973, defendant Cole and others were indicted by an Essex County grand jury. Cole was indicted on two counts of robbery, a violation of N.J.S.A. 2A:141-1 (counts 1 and 7); two counts of possession of a weapon while committing the robberies, contrary to N.J.S.A. 2A:151-5 (counts 2 and 8); three counts of assault with a dangerous weapon, a violation of N.J.S.A. 2A:90-3 (counts 3, 4 and 9), and one count of possession of a weapon, contrary to N.J.S.A. 2A:151-41 (count 10). Cole was not indicted in counts 5 and 6.
On December 20, 1973 defendant's motion to sever his trial from that of his codefendants was granted. Defendant also moved at that time to sever the charges into three separate trials, based on the argument that the indictment actually charged defendant with three distinct criminal offenses. The court found that there would be no prejudice to defendant, because the incidents were very close in time, and refused to sever the charges into three separate trials.
On May 20, 1974 defendant moved to sever the charges into two trials and the request was again denied.
Defendant was tried before a jury on May 21, 22, 23 and 24, 1974. The trial resulted in guilty verdicts on count 9 (assault with a dangerous weapon) and count 10 (unlawful possession of a pistol). Prior to trial the court dismissed count 7 (robbery) and count 8 (being armed while committing the robbery) with the consent of the State. Because the jury could not arrive at a verdict on counts 1 (robbery), 2 (being armed while committing the robbery), 3 and 4 (assault with a dangerous weapon), the court declared a mistrial on these counts.
A second trial on counts 1 through 4 was held on October 29, 1974. The jury returned guilty verdicts on all four counts.
On December 18, 1974 defendant was sentenced to an aggregate term of 14 to 24 years in State Prison. Defendant filed a timely appeal.
Defendant asserts that (1) the trial judge erred in refusing to sever the charges into separate trials; (2) the judge committed plain error in instructing the jury to consider prior inconsistent statements of a witness for the State for credibility purposes only and not as substantive evidence; (3) the conviction for possession of a pistol without a permit must be reversed as a matter of plain error because the State failed to establish that the pistol was operable and the judge failed to instruct the jury as to the issue of operability, and (4) the judge abused his discretion in imposing sentences which were manifestly excessive and unduly punitive.
Defendant's first point -- that the court erred in denying a severance of the charges for the purpose of trial -- is without merit. The first four counts charging robbery, robbery while armed and assault related to one incident -- an armed robbery of and assault on two patrons in a Newark bar known as "Club 18" shortly after 4 P.M. on May 8, 1973. These charges were prosecuted at the first trial, but the jury did not render a verdict as to them. Consequently these charges were the only ones which were the subject of the second trial. At the first trial the jury had found defendant guilty of two crimes which arose from a single episode later on the same day as the robbery of the bar.
It is obvious that the jury at the first trial heeded the judge's charge to separately and distinctly consider the charges stemming from the robbery incident from those relating to the later incident. Thus, there was no prejudicial error.
However, we do not view the severance denial as error as a matter of law. R. 3:7-6 authorizes the joinder of offenses where they "are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting ...