On appeal from Superior Court, Law Division, Camden County.
Seidman, Michels and Devine. The opinion of the court was delivered by Seidman, P.J.A.D.*fn2
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 N.J.S.A. 2A:96-6 in 1975, 1976 and 1977 by placing, offering to place or assisting to place a child for purpose of
adoption in each of those years without proper authority. In connection with these matters he was also charged in four counts with obstruction of justice, in violation of N.J.S.A. 2A:85-1. The remaining count, which charged defendant with giving false information to a law enforcement officer concerning a child placement, in violation of N.J.S.A. 2A:148-22.1, is not involved in this appeal.
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, N.J.S.A. 2A:85-1, has been so changed in the New Jersey Code of Criminal Justice by N.J.S.A. 2C:29-1 that the crime is no longer an offense under the Code. Defendant advances in his brief the alternate argument that if it is determined that the obstruction of justice ...