State v. Mello, 297 N.J. Super. at 463-64; State v. Clark,
227 N.J. Super. 204, 209-10 (App. Div. 1988). In State
v. Yoskowitz, 116 N.J. 679, 701 (1989), our Supreme
Court set forth the four-part test to determine whether
the mandatory joinder rule applies: 1) all of the charges
must be crimes; 2) the charges must be based on the same
conduct or must arise from the same episode; 3) the
prosecutor must be aware of all of the offenses when the
first trial begins; and 4) all of the offenses must be within
the jurisdiction and venue of a single court.
Notwithstanding the preference for joinder, N.J.S.A.
2C:1-8c and R. 3:15-2(b) provide that when a defendant
is charged with two or more criminal offenses based on
the same conduct or arising from the same episode, the
court may order separate trials if it appears that defendant
or the State will be unfairly prejudiced by a joinder of
offenses. In deciding whether the offenses should be tried
together or separately, the court should consider
whether, if the charges were tried separately, evidence of
the offenses sought to be severed would be admissible
under N.J.R.E. 404(b) in the trial of the remaining
charges. State v. Morton, 155 N.J. 383, 451 (1998); State
v. Chenique-Puey, 145 N.J. 334, 341 (1996). For
example, when defendant is charged with contempt of a
domestic violence restraining order as well as terroristic
threats against the person whom the restraining order was
issued to protect, the charges should be tried separately
upon defendant’s request if he or she will be prejudiced
by a presentation to the jury of allegations regarding the
multiple offenses when the jury is expected to decide
defendant’s guilt as to each charge separately. State v.
Chenique-Puey, 145 N.J. at 340-43.
V. MISCELLANEOUS
A. Effect of Suppression
An order suppressing drugs seized in defendant’s
apartment, upon which a drug possession charge was
based, in no way affected the State’s ability to try
defendant for an earlier distribution, gave defendant no
reasonable expectation that he would not be prosecuted
for distribution, and was not a justifiable basis upon
which to dismiss the indictment. State v. Phillips, 150
N.J. Super. 75, 76-77 (App. Div.), certif. denied, 75 N.J.
523 (1977).
B. Improper Remarks
Neither the trial court nor the prosecutor may tell the
jury that an indictment by itself constitutes a prima facie
finding by a grand jury that defendant is guilty. State v.
Johnson, 65 N.J. 388, 391 (1974); State v. Green, 313
N.J. Super. 385, 391-92 (App. Div. 1998).C. Lesser-Included Offenses (See also, COURTS, this
Digest)A defendant may be found guilty of an offense not
included in the indictment if it amounts to a lesser-
included offense of a greater offense charged in the
indictment. N.J.S.A. 2C:1-8d; State v. Talley, 94 N.J. at
392; see also State v. Branch, 155 N.J. at 324-25; State v.
Mancine, 241 N.J. Super. 166, 180 (App. Div.), aff’d in
part and rev’d in part, 124 N.J. 232 (1991).In State v. Sloane, 111 N.J. 293, 299-04 (1988),
defendant, who had stabbed the victim through the arm
and in the back, was indicted for second degree
aggravated assault (purposely or knowingly causing
serious bodily injury to another) and possession of a
weapon for an unlawful purpose. Defendant was
acquitted of the possession charge. The trial court
declined to charge the jury on any assault offense other
than that of causing serious bodily injury to another, and
none was requested by the defense. Thus, on the assault
count the jury had to choose between acquitting
defendant or finding him guilty of second degree
aggravated assault, the latter of which they did. The
Appellate Division affirmed the conviction, believing
that, because of the added element of a weapon, third-
degree aggravated assault was not a lesser-included
offense of second degree aggravated assault.The Supreme Court of New Jersey reversed and held
that the jury should have been permitted to consider
whether the victim’s stab wounds were “bodily injuries”
so as to allow a conviction for the lesser-included offense
of third-degree aggravated assault (purposely or
knowingly causing bodily injury with a deadly weapon).
Defendant was charged with the highest degree of assault
in the Code. He was therefore on notice, and indeed it
was to his advantage, that the jury be permitted to
consider the lesser-included offenses of assault that
require a lesser degree of injury. Defendant knew,
because of the second count of the indictment, that a
deadly weapon was involved in the charges. He did not
object to the charge here; indeed, he requested the
charge. Thus, he can be assumed to have been aware that
the jury was able to enter a verdict of guilt of any of the
appropriate lesser-included offense. See also State v.
Farrell, 250 N.J. Super. 386, 392 (App. Div. 1991).In State v. Queen, 221 N.J. Super. 601, 605-08 (App.
Div. 1988), the court determined that simple assault is