(Law Div. 1984); see also Miller, 33A New Jersey Practice
§601-605 (2d ed.).
The subpoena power of the grand jury in Medicaid
cases has been addressed by the courts. In In re Grand Jury
Subpoena Duces Tecum, 143 N.J. Super. 526 (Law Div.
1976), the court examined a grand jury’s subpoena
power of documents relating to a Medicaid fraud
investigations. The court determined that a period of six
and one-half years was not unreasonable so as to
constitute a detriment to movant’s business where the
State submitted evidence establishing that the period of
time with which the subpoenaed records dealt bore a
relation to the subject matter of the investigation. Id. at
536-538. Further, the court found that the subpoena
was reasonable in all respects except insofar as its
command for production of records that would not duly
hamper the movant’s business operations, but that the
burden was on the movant to come forward and establish
which records were necessary to carry on the normal
operations of his business. Id. at 538-539.
In State v. Doliner, 96 N.J. 236 (1984), the New
Jersey Supreme Court addressed the question of the
applicable standards governing the disclosure of grand
jury materials to government departments for use in civil
prosecution. The Doliner court held that the standard
was a strong showing of particularized need which
outweighs the public interest in secrecy of the grand jury
proceedings. Id. at 241. In announcing this standard,
the court found that the record made before the trial
court sustained its decision to release the records of the
defendant medical providers, which were subpoenaed in
connection with a Medicaid fraud investigation. Id.
MERGERMERGERMERGERMERGERMERGER
I. INTRODUCTION
The merger doctrine descends from the long-
standing principle that “an accused [who] has committed
only one offense... cannot be punished as if for two.” State
v. Davis, 68 N.J. 69, 77 (1975). This proposition has
been interpreted to prohibit multiple punishment for a
single wrongdoing and mandates that convictions for
lesser offenses that are necessary components of another
offense must merge. As, however, noted by the Davis
Court, “[w]ith whatever disarming ease the prohibition
against double punishment may be articulated, its
application is not without difficulties.” Id. In fact,
merger has spawned a steady stream of litigation over the
years during which the Supreme Court of New Jersey has
endorsed two alternate approaches to merger, which to
date comprise the analytic framework for determining
the merger of offenses.II. TESTS FOR DETERMINING MERGER
Historically, the test for determining whether
multiple convictions should merge was “whether a
particular act involved in a single transaction is a distinct
criminal affair or an integral part of the principal offense
charged.” State v. Hill, 44 N.J. Super. 110, 112 (App.
Div. 1957). Although regarded as a correct enunciation
of the law, this approach failed to define the precise
meaning of a “single crime.” State v. Best, 70 N.J. 56, 62
(1976). More recently, the court adopted two other,
more sophisticated approaches to merger that have
become the settled law.The first approach is grounded in the statutory rule
governing merger, N.J.S.A. 2C:1-8. As N.J.S.A. 2C:1-
8d, explains, an offense is included within another when- It is established by proof of the same or less than
all the facts required to establish the commission of the
offense charged; or - It consists of an attempt or conspiracy to commit
the offense charged or to commit an offense otherwise
included therein; or - It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind
of culpability suffices to establish its commission.