conspiracy conviction with his two extortion convictions,
in part, because the legislative intent behind the RICO
statutes, which governed these offenses, was to punish
separately and by consecutive sentence a RICO
conspiracy and a predicate offense.
Finally, the court will also not merge crimes that are
temporally distinct or involve different victims. In State v.
Scher, 278 N.J. Super. 249, 274 (App. Div.), certif. denied,
140 N.J. 276 (1994), the court did not merge three
assault by auto convictions because they involved
different victims. In State v. Ball, 268 N.J. Super. 72, 149
(App. Div. 1993), aff’d 141 N.J. 142 (1994), cert. denied,
Mocco v. New Jersey, 516 U.S. 1075 (1996), the court
refused to merge defendant’s racketeering and bribery
convictions because the offenses were committed at
different times and places, different proofs were required
to sustain each, and the offenses resulted in different and
distinct injuries. Likewise, in State v. Jordan, 235 N.J.
Super. 517, 519-22 (App. Div.), certif. denied, 118 N.J.
224 (1989), the court held that the simultaneous
possession of different types of drugs were severable
offenses. And, in State v. Craig, 237 N.J. Super. 407, 416
(App. Div. 1989), certif. denied, 121 N.J. 662 (1990),
the court held that a defendant whose firebombing of a
building resulted in harm to multiple victims should be
exposed to multiple sentences. See also State v. Williams,
229 N.J. Super. 179, 183-84 (App. Div. 1988) (refusing
to merge conviction for possession of cocaine with
possession with intent to distribute where the two
offenses occurred under disparate circumstances and
involved the trafficking of drugs to different people); State
v. Lewis, 223 N.J. Super. at 152 (court did not merge
aggravated manslaughter and aggravated assault
convictions because they involved different victims).
IX. MERGER OF CHILD SEXUAL ABUSE AND
CHILD ENDANGERMENT CONVICTIONS
A seminal case in the area of child sexual abuse, State
v. Miller, 108 N.J. 112, 118-19 (1987), established the
now long-standing rule that child endangerment under
N.J.S.A. 2C:24-4a and child sexual assault under
N.J.S.A. 2C:14-2a(1) do not merge. The Court reasoned
that although such crimes could be encompassed in a
single episode, the relevant statutes protect different
societal interests. That is, the aggravated sexual assault
statute shields children under a certain age from sexual
assault, while the endangerment statute protects
children from assault by those with a legal duty of care for
them. In Miller, defendant was the victim’s father, which
factor thus precluded the merger of his aggravated assault
and child endangerment convictions. Accord State v.
Hackett, 323 N.J. Super. 460, 481-82 (reaffirming this
holding). On the other hand, in State v. Still, 255 N.J.
Super. 225, 259-60 (App. Div. 1992), the court merged
defendant’s conviction for sexual assault with fourth-
degree endangering the welfare of a child because he was
not the parent and had not undertaken any form of a legal
duty of care toward the child. See also State v. Hackett,
supra, 323 N.J. Super. at 482 (merging conviction for
lewdness with endangering the welfare of a child).X. MERGER AND POSSESSION OF CON-
TROLLED DANGEROUS SUBSTANCES
Another seminal case in the evolution of the merger
doctrine was State v. Dillihay, supra, which resolved the
application of the anti-merger provision in N.J.S.A.
2C:35-7 regarding distribution of drugs and distribu-
tion of drugs in a school zone. Applying a double
jeopardy analysis, the Court examined the punitive
objective of the anti-merger provision and concluded that
the non-merger statute did not evidence a clear legislative
intent to mandate multiple punishments for convictions
relating to these offenses and that these offenses were “the
same” insofar as the elements of distribution were
necessary to establish the elements of distributing within
a school zone. State v. Dillihay 127 N.J. at 50-51.
Accordingly, the Court permitted the merger of these
offenses provided that the sentence of a defendant
convicted of a drug offense include the mandatory
minimum sentence provided in the school-zone statute.
Id. at 56; see also State v. Brana, 127 N.J. 64, 68 (1992);
State v. Blow, 123 N.J. 472 (1991); State v. Soto, 241 N.J.
Super. 476, 478 (App. Div.), aff’d, 126 N.J. 310 (1991).XI. MERGER AND FAILURE TO PAY TAXES
In 1987, the Legislature amended subsection
N.J.S.A. 2C:1-8a(4) of the merger statute to remove State
tax offenses from the restrictions of the rule, which
amendment was addressed in State v. Manthey, supra. In
that case, the court cited to the relevant subsection,
which provides that merger is required where “the
offenses differ only in that one is defined to prohibit a
designated kind of conduct generally and the other to
prohibit a specific instance of such conduct,” but which
continues that “no State tax offense... shall be construed
to preclude a prosecution for any offense defined in this
code.” State v. Manthey, 295 N.J. Super. at 32.
Recognizing that this section of the statute could be
regarded as an anti-merger provision, the court
nonetheless ruled that defendant’s conviction for failure
to pay taxes should have merged with his conviction for
misapplication of entrusted property since there was only