cdTOCtest

Ibid.; State v. Colbert, 245 N.J. Super. 53, 58 (App. Div.
1990).

Offenses involving separate and distinct incidents
generally do not constitute “same conduct” for purposes
of mandatory joinder. State v. Pillot, 115 N.J. 558 (1989)
(six separate robberies against six separate victims in six
different locations over a nine-week period did not
constitute “same conduct”); State v. Catanoso, supra
(separate acts of conspiracy and bribery against different
victims in different locations over a period of years did not
constitute “same conduct”).

R. 3:15-3(a)(1) requires joinder of non-indictable
offenses with indictable offenses “based on the same
conduct or arising from the same episode,” except as
provided in paragraph (b). State v. Capak, 271 N.J.
Super. 397, 404 (App. Div.), certif. denied, 137 N.J. 164
(1994).

C. Severance of Offenses

R. 3:15-2(b) vests a trial court with discretion to
order separate trials if joinder would unfairly prejudice a
defendant. State v. Keys, 331 N.J. Super. 480 (Law Div.
1998), aff’d 331 N.J. Super. 429 (App. Div. 2000). The
rule states in pertinent part that “[i]f for any other reason
it appears that a defendant or the State is prejudiced by
a permissible or mandatory joinder of offenses... in an
indictment or accusation the court may order an election
or separate trial of counts... or direct any other
appropriate relief.”

Central to deciding whether defendant’s right would
be prejudiced by joinder is “whether, assuming the
charges were tried separately, evidence of the offense
sought to be severed would be admissible under Evidence
R. 55 [now N.J.R.E. 404(b)] in the trial of the remaining
charges.” State v. Urcinoli, 321 N.J. Super. 519, 541
(App. Div.), certif. denied, 162 N.J. 132 (1999); see also
State v. Morton, 155 N.J. at 451; State v. Oliver, 133 N.J.
141, 150-51 (1993); State v. Pitts, 116 N.J. 580, 599-
603 (1989); State v. Alfano, 305 N.J. Super. 178 (App.
Div. 1997). If the evidence would be admissible at both
trials, then joinder is appropriate because “a defendant
will not suffer any more prejudice in a joint trial then he
would in separate trials.” State v. Urcinoli, 321 N.J. Super.
at 541; State v. Coruzzi, 189 N.J. Super. 273, 299 (App.
Div.), certif. denied, 94 N.J. 531 (1983). Stated in the
alternative, if the evidence that would be presented at one
trial would be inadmissible at the second trial, severance
is appropriate. State v. Chenique-Puey, 145 N.J. 334, 343
(1996).

In Chenique-Puey, the Supreme Court reversed a

decision not to sever a contempt count (stemming from

a violation of a domestic violence order) from a terroristic

threats count. In that case, the Court set forth the

procedure to be followed by trial courts when trying

sequentially charges of contempt of a domestic-violence

restraining order and of an underlying criminal offense

when the charges arise from the same criminal episode.

Id. at 343.

D. Time for Making a Motion for Severance

A motion for severance of counts of an indictment

must be made pursuant to R. 3:10-2, unless the court, for

good cause shown, enlarges the time. R. 3:15-2(c).

II. DEFENDANTS

Joinder of defendants in a criminal trial is governed

by R. 3:7-7 which provides:

Two or more defendants may be charged in the same

indictment or accusation if they are alleged to have

participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or

offenses. Such defendants may be charged in one or more

counts together or separately and all of the defendants

need not be charged in each count. The disposition of the

indictment or accusation as to one or more of several

defendants joined in the same indictment or accusation

shall not affect the right of the State to proceed against the

other defendants. Relief from prejudicial joinder shall be

afforded as provided by R. 3:15-2.

Under R. 3:15-2(a), a court should grant a severance

of defendants if it appears that a Bruton problem exists,

i.e., effective deletions of a codefendant’s confession

cannot be made. State v. Buonadonna, 122 N.J. 22, 34

(1991). R. 3:15-2(a) sets forth the procedure for the

State to follow if two or more defendants are to be jointly

tried and the State intends to introduce at trial a

confession or admission of one defendant involving any

other defendant:

If two or more defendants are to be jointly tried and the

prosecuting attorney intends to introduce at trial a

statement, confession or admission of one defendant

involving any other defendant, the prosecuting attorney

shall move before trial on notice to all defendants for a

determination by the court as to whether such portion of

the statement, confession, or admission involving such

other defendant can be effectively deleted therefrom.

The court shall direct the specific deletions to be made,