expectation of finality that would otherwise have
precluded a remand and resentencing. Id. at 270-71.
Whether the appellate court will consider merger-
related arguments on appeal depends on whether or not
it was raised below. Where a defendant raises merger for
the first time on appeal, he must demonstrate “by a
preponderance of the evidence that the record supports
his merger claim.” State v. Truglia, 97 N.J. at 518-19;
see also State v. Strecko, 244 N.J. Super. 463, 464-65 (App.
Div. 1990). Once on appeal, the appellate court is
permitted to review the merger of all offenses whether or
not they are raised by defendant. In State v. Pyron, 202
N.J. Super. 502, 504-05 (App. Div. 1985), the court
agreed with defendant that a third-degree threat-to-kill
conviction and a robbery conviction should have merged,
but un-merged the sentencing court’s merger of the
burglary and robbery convictions.
It is well to note that merger will not be deemed
waived on appeal if a defendant was not made cognizant
of the operative effects of merger on his or her convictions.
State v. Truglia, 97 N.J. at 523-34. But, where a
defendant has knowingly and intelligently waived
merger pursuant to a plea agreement, such waiver will be
enforced on appeal. State v. Crawley, 149 N.J. 310, 317-
18 (1997). Notably, though, a plea will not necessarily
fail even if a defendant was not properly informed of
merger of his convictions, provided that such failure does
not have the effect of misinforming a defendant of his or
her potential sentence. The Crawley Court nonetheless
underscored that the better practice is for the trial judge
to appraise every defendant of the potential of merger of
his or her convictions. Id. at 319; but see State v. Bull, 268
N.J. Super. 504, 516 (App. Div. 1993) (where defendant
did not raise below the merger issue, but the court refused
to penalize him with non-merger of his convictions in a
set of facts that could have been the basis for either merger
or non-merger absent any guidance from the indictment,
the judge’s jury instructions or the jury verdict), certif.
denied, 135 N.J. 304 (1994); see also State v. Roddy, 210
N.J. Super. 62, 66-67 (App. Div. 1986) (where the
appellate court merged two convictions that were part of
a plea agreement, but where on resentencing the judge
granted the State’s motion for an extended term that
altered the sentence to such an extent that the appellate
court found that both the State and defendant were
deprived of their reasonable expectations under plea
agreement, necessitating vacation of the plea agreement
and the return of both parties to their original pre-plea
positions).V. MERGER AND JURY INSTRUCTIONS
Whether or not multiple offenses will ultimately
stand is an issue to be determined by the judge after the
jury has rendered its verdict. State v. Clark, 227 N.J.
Super. 204, 212 (App. Div. 1988); see also State v. Berrios,
186 N.J. Super. at 202 n.2. Of course, the judge’s jury
instructions, and particularly the submission or
exclusion of lesser-included offenses, will ultimately
establish the framework for the application of merger at
sentencing.But merger can also be affected by the form or non-
specificity of the judge’s jury instructions. State v.
Hardison, 99 N.J. 379 (1985), is a prime example of this
circumstance. In that case, defendants was charged with
conspiracy to rob and with two separate robbery offenses.
The jury convicted defendant of conspiracy to rob and
only one of the robbery offenses. The question then arose
whether the conspiracy should merge into the robbery
conviction. Id. at 386.After reviewing the record below, the Hardison
Court determined that the facts established that the
objective of the conspiracy charge was to further the
surviving robbery offense, and thus merged the two
convictions. Id. at 391. The Court, however, advised
that it would be appropriate in such situations to give the
jury post-verdict interrogatories as a means of clarifying
the nature of the verdict and thereby assist the sentencing
judge in making the appropriate merger determinations.
Id. Citing to State v. Simon, 79 N.J. 191 (1979), the
Hardison Court, however, cautioned that in no event
should such interrogatories be supplied to the jury prior
to rendering its verdict. Id.; see also State v. Pantusco, 330
N.J. Super. 424, 444 (App. Div. 2000) (holding that
absent a special verdict from the jury indicating which of
the three robberies defendant was fleeing when he
committed murder, the court was compelled to merge
the robbery with defendant’s felony murder conviction);
State v. Bull, 268 N.J. Super. at 516 (citing to similar lack
of guidance from the indictment, judge’s instructions
and jury verdict). A jury should likewise not be informed
as to whether or not convictions may merge at sentencing
because such information could compromise the verdict
or distract the jury from focusing on each of the elements
charged. State v. Carswell, 303 N.J. Super. 462, 478-80
(App. Div. 1997).