Appellate Court Reverses Decision: Severance Denied in State v. A.F. Sexual Abuse Case

State of New Jersey v. A.F.

Docket No. A-0799-22

Decided August 10, 2023

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal from an order denying his motion to sever certain counts of an indictment charging him with sexually abusing three minor sisters, K.A., B.P., and S.P., over the course of approximately ten years while he shared various homes with their family.

For approximately 10 years, the alleged victims lived with defendant in various two-bedroom residences. The victim’s lived with their mother in one room, and the defendant lived in the second room with his wife and son. The two families shared common areas of the residences. This arrangement ceased in May 2014 when the victims and their mother moved to Pennsylvania. The victims disclosed the sexual abuse they endured in 2017.

The victims were then interviewed by law enforcement regarding the abuse. Although they were not able to provide detectives with specific dates, they were all able to describe multiple instances of abuse in detail. The victims first confided in each other and then eventually told their mother about the abuse, who then alerted authorities. Police stated defendant denied any abuse but said his penis or hand may have touched them during play.

After the grand jury returned a ten-count indictment against defendant, he subsequently moved to sever the counts as they relate to each alleged victim. The trial court denied defendant’s motion and his motion for reconsideration. He then moved for leave to appeal, which the Appellate Court denied as did the Supreme Court of New Jersey. Defendant eventually renewed his severance motion after the Appellate Court issued its decision in State v. Smith, 471 N.J. Super. 548 (App. Div. 2022).

Defendant contended, relying on Smith, that neither his intent nor absence of mistake were genuinely disputed, evidence of his alleged assaults against each of the three girls respectively would be inadmissible under N.J.R.E. 404(b). Defendant also argued that if the court denied his application, the State would be permitted to impermissibly bolster each alleged victim’s testimony, which he believed would be particularly damaging in light of the lack of proofs against him aside from their testimony.

The trial court denied defendant’s motion, explaining that in determining whether or not to try certain charges jointly or separately, the court must consider ‘whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under 404(b) in the trial of the remaining charges. The court applied the 4-factor test in State v. Cofield, 127 N.J. 328, 338 (1992) and concluded that evidence relating to defendant’s alleged sexual abuse of each of the three alleged victims would be admissible in severed trials. Defendant appealed.

On appeal, defendant argued that the trial court abused its discretion in denying his motion to sever counts of the indictment for separate trials because the State failed to establish, under Cofield’s first prong, that evidence of his alleged abuse against each of the alleged victims would be relevant to any genuinely disputed issue at severed trials. Defendant also argued that the trial court’s denial of his severance motion is contrary to Smith, which he asserts similarly involved allegations of sexual assault by a father against two girls with whom he lived.

The Appellate Court ultimately agreed with defendant’s contentions and reversed the trial court’s decision. The court concluded that the State failed to satisfy its burden under the first and fourth Cofield prong. The court noted that State failed to establish less prejudicial evidence was not available to prove any disputed fact and defendant denied the specific allegations against him.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining motions to sever counts of an indictment. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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