IX. SENTENCING
A. Grading
N.J.S.A. 2C:5-4a provides, in pertinent part,
“conspiracy is a crime of the same degree as the most
serious crime which is the object of the conspiracy.”
Thus, to determine gradation the court must consider
the object of the conspiracy only, without reference to
any substantive offenses that may or may not be charged
in other counts of the indictment. Although an acquittal
on the substantive offense suggests that the contemplated
crime was not committed, “[t]his would not alone
prevent a conviction of conspiracy since the conspiracy
may well have been an inchoate part of the crime and,
ordinarily, could stand independently....” State v.
Malone, 269 N.J. Super. 414, 418 (Law Div. 1993).
Conspiracy is generally a crime of the same degree as
the most serious crime which is the object of the
conspiracy. An exception to this general rule exists for a
conspiracy to commit a crime of the first degree, in which
case conspiracy is a second-degree crime. N.J.S.A. 2C:5-
4a; State in the Interest of W.M., 273 N.J. Super. 111, 115
(App. Div. 1989).
The commission of a crime can occur without
completion of the substantive offense contemplated by
the conspiracy, and if the substantive offense is a crime of
the first degree, the conspiracy offense is graded as a
second-degree crime. N.J.S.A. 2C:5-4; State v. Brown,
138 N.J. 481, 529 (1994).
B. Merger
In State v. Hardison, 99 N.J. 379, 380 (1985), the
Supreme Court held that “if the conspiracy proven has
criminal objectives other than the criminal offense
proven, the offenses will not merge.” Attempt and
conspiracy are inchoate aspects of contemplated and
consummated crime, which gives rise to problems of
merger where both attempt or conspiracy and
consummated crime are both in indictment and in
evidence. Conspiracy encompasses a variety of
substantive crimes charged, not just one, and, thus,
conspiracy merges with all of substantive crimes which
resulted in the conviction; the fact that conspiracy
embraced more objects than any single other count was
irrelevant. An acquittal on one of components of official
misconduct, i.e., tampering with public records, did not
justify separate sentencing on conspiracy or prevent
merger concept from applying, because it would have
been anomalous to subject defendant to greater exposure
when acquitted than would have resulted if he were
convicted. State v. Malone, 269 N.J. Super. 414 (Law Div.
1993).In the context of merger, generally if in the execution
of a conspiracy the substantive crime committed falls
short of the crime planned, the conspiracy survives
merger because the substantive crime committed will be
of a lower degree and therefore of “a lesser kind of
culpability” than the conspiracy. State v. Connell, 208
N.J. Super. 688, 695 (App. Div. 1986).Conspiracy for which defendant was convicted did
not have criminal objective beyond thefts charged in
separate count, and thus should have been merged into
theft counts, even though conspiracy count charged
conspiracy to commit forgery and falsify records as well as
conspiracy to commit theft; alleged forgery and
falsification of records conspiracies were not part of
independent scheme, but rather integral part of theft.
State v. Jurcsek, 247 N.J. Super. 102, 109-10 (App. Div.
1991), certif. denied, 126 N.J. 333 (1991).C. Consecutive Sentences
Because the offense of bringing stolen property in
New Jersey was one of the overt acts committed in
furtherance of conspiracy for which defendant was
sentenced to a maximum extended term, and because
neither crime involved any element of violence or threat
of violence, defendant should not have received a
consecutive term for the offense of bringing stolen
property into the State. State v. Streater, 233 N.J. Super,
537, 545-46 (App. Div. 1989), certif. denied, 117 N.J.
667 (1989).