Rondinone, 291 N.J. Super. 489, 499-00 (Law Div.
1996), aff’d 300 N.J. Super. 495 (App. Div. 1997), the
court merged defendant’s conviction for exhibiting
another’s drivers license and falsifying records because
proof of the former was required to prove the latter
offense. In State v. Streater, 233 N.J. Super. 537, 544
(App. Div.), certif. denied, 117 N.J. 667 (1989), the court
merged theft by deception and a conviction for uttering
a forged instrument, also on the premise that the evidence
relied upon by the State to support the two convictions
was identical. Likewise, in State v. Manning, 234 N.J.
Super. 147, 164 (App. Div.), certif. denied, 117 N.J. 657
(1989), which involved two counts of felony murder for
the same victim and two underlying felonies -- escape and
robbery -- the court concluded that the offense regarded
as the basis for the felony murder, in this case robbery,
must merge; defendant was sentenced separately for the
escape conviction. See also State v. Mirault, 92 N.J. 492,
503-04 (1983); State v. Pyron, 202 N.J. Super. at 505.
Notably, the court will also merge offenses that are
factually inseverable from one another. In State v. Ramos,
217 N.J. Super. 530, 540 (App. Div. 1987), the court
merged second-degree burglary with attempted
aggravated sexual assault because defendant was
convicted of the greater offense of attempted sexual
assault only because he committed the burglary. And, in
State v. Lore, 197 N.J. Super. 277, 283-84 (App. Div.
1984), the court merged a conviction for simple assault
with the offense of misconduct in office since the State
relied on the simple assault to establish the latter offense.
The court will likewise merge offenses that are
temporally connected, as well as those that involve the
same victims. In State v. Kamienski, 254 N.J. Super. at
113, the court found that the convictions for distribution
of drugs between Florida and New Jersey arose out of a
single activity and thus merged. In State v. Parsons, 270
N.J. Super. 213, 222 (App. Div. 1994), the court merged
two counts of resisting arrest against two different
officers, as both represented the State. And, in State v.
Latimore, 197 N.J. Super. 197, 215 (App. Div. 1984),
certif. denied, 101 N.J. 328 (1985), the court merged two
separate convictions for possession of weapons because
the possessory offenses evolved out of the same criminal
episode.
These aforesaid principles of merger, of course,
operate in the converse, too. That is, the court will not
merge convictions that are comprised of non-inclusive
offenses. For example, the court will not merge an offense
of possession of a handgun for an unlawful purpose and
possession of a handgun without a permit since they are
distinct offenses. State v. Cooper, 211 N.J. Super. at 23.
Similarly, a conviction for burglary of a motor vehicle will
not merge with the theft of a motor vehicle because the
entry into the car and theft are two disparate acts. State v.
Subin, 222 N.J. Super. 227, 236-37 (App. Div.), certif.
denied, 111 N.J. 580 (1988). Neither will burglary and
robbery merge, as they involve different conduct. State v.
Martes, 266 N.J. Super. 117, 123 (Law Div. 1993).Based on this same rationale, the court will also not
merge convictions that require the finding of elements of
which the other offense is not constituted. In State v.
Cook, 330 N.J. Super. 395, 424 (App. Div. 2000), the
court rejected the merger of defendant’s robbery
convictions into murder because the proofs of the armed
robbery offenses were not required to sustain the murder
conviction. In State v. Davis, 281 N.J. Super. 410, 416
(App. Div. 1995), certif. denied, 45 N.J. 376 (1996), the
court held that aggravated assault upon a police officer
did not merge with resisting arrest. In State v. Mara, 253
N.J. Super. 204, 213-14 (App. Div. 1992), the court
concluded that aggravated assault did not merge with a
conviction for driving while intoxicated because
intoxication is not an element of the assault conviction.
And, in State v. Buonadonna, 122 N.J. 22, 49-50 (1991),
the Court held that second-degree aggravated assault
need not have merged with first-degree robbery since the
State proffered sufficient evidence to sustain each
conviction separately and because each conviction
addressed separate injuries. See State v. Russo, 243 N.J.
Super. 383, 411 (App. Div.) (holding that defendant’s
conviction for armed robbery should not merge with his
conviction for felony murder because his conviction of
knowing and purposeful murder rendered the felony
murder “surplusage” and thus precluding that the
underlying felony must be merged), certif. denied, 126
N.J. 322 (1991); see also State v. Crouch, 225 N.J. Super.
100, 109 (App. Div. 1988); State v. Lewis, 223 N.J.
Super. 145 (App. Div.), certif. denied, 111 N.J. 584
(1988).Likewise, the court will not merge offenses which are
severable by legislative intent. In State v. Matarama, 306
N.J. Super. 6, 23-24 (App. Div. 1997), certif. denied, 153
N.J. 50 (1998), the court did not merge kidnaping and
carjacking because the legislature made clear that these
two crimes were to be punished separately. In State v.
Travers, 229 N.J. Super. 144, 151 (App. Div. 1988), the
court did not merge death by auto and operating a vehicle
while intoxicated since the statutes governing the
aforesaid violations protected different interests.
Similarly, in State v. Taccetta, 301 N.J. Super. at 257-58,
the court declined to merge defendant’s racketeering