This statute has been regarded as a codification of the
standard articulated in Blockburger v. United States, 284
U.S. 299 (1932), and the basis for what is now widely
known as the Blockburger test. Principally a double
jeopardy test, the Blockburger standard sets forth that
whether there are two offenses or one is to be determined
by “whether each provision requires proof of an
additional fact which the other does not.” Id. at 304; see
also State v. Fraction, 206 N.J. Super. 532, 538-39 (App.
Div. 1985), certif. denied, 104 N.J. 434 (1986). This
test, however, has been severely criticized by the Court
as being overly “mechanistic.” State v. Truglia, 97 N.J.
513, 520 (1984).
Indeed, the Court essentially rejected this approach
in favor of the more flexible one first introduced in State
v. Davis, supra. State v. Miller, 108 N.J. 112, 116-18
(1987). Davis, which predates the statutory rule, focuses
on the “episodic fragments of the events.” State v. Truglia,
97 N.J. at 521. This requires a court to analyze offenses
with respect to the “time and place of each purported
violation; whether one act was part of a larger scheme or
episode; the intent of the accused; and the consequences
of the criminal standards transgressed.” State v. Davis, 68
N.J. at 81. The Court also permitted that other factors
may be considered “along with the above, (and may be)
accorded greater or lesser weight depending on the
circumstances of the particular case.” Id.; accord, State v.
Best, supra.
The Court reaffirmed its preference for the flexible
approach in State v. Cole, 120 N.J. 321, 327-28 (1990),
reiterating that the focus of the merger test is on “the
elements of crime and the Legislature’s intent in creating
them, and on the specific facts of each case.” The Court,
however, did not abandon the Blockburger test and, in
fact, resolved the merger issue in the Cole case in light of
a synthesis of statutory, constitutional and common law
principles. Indeed, while New Jersey courts tend to rely
fairly heavily and consistently on the flexible approach,
still, as the caselaw indicates, neither the statutory nor the
flexible approach has “achieved universal acceptance.”
State v. Warren, 186 N.J. Super. 35, 39 (Law Div. 1982);
see State v. Dillihay, 127 N.J. 42, 50-51 (1992) (applying
the Blockburger test); and State v. Fraction, 206 N.J. Super.
at 538 (same); compare State v. Manthey, 295 N.J. Super.
26, 32 (App. Div. 1996) (applying the “flexible” test);
and State v. Kamienski, 254 N.J. Super. 75, 124 (App.
Div. 1992) (same), certif. denied, 130 N.J. 18 (1992); but
see State v. Maldonado, 137 N.J. 536, 582 (1994)
(applying both tests).
Apart from the Court’s vacillatory position on its
analytic approach to merger, there is still another aspect
of this body of law that has been left unresolved.
Specifically, the courts have yet to decide the etiology of
merger, particularly regarding whether its origins are
rooted in “double jeopardy, substantive due process or
some other legal tenet.” State v. Cole, 120 N.J. at 326.
Thus far the Court has only acknowledged that merger
“implicates a defendant’s substantive constitutional
rights.” Id.III. MERGER GENERALLY
It is a cardinal rule of the merger doctrine that a crime
of a greater degree cannot be merged into one of a lesser
degree. State v. Dillihay, 127 N.J. at 54-55; State v. Battle,
256 N.J. Super. 268, 283 (App. Div.), certif. denied, 130
N.J. 393 (1992). Nonetheless, the courts have held that
merger does not extinguish any merged convictions even
though the merged conviction was embraced under a
single sentence. State v. Pennington, 273 N.J. Super. 289,
295 (App. Div.), certif. denied, 137 N.J. 313 (1994).
Thus, when the Pennington court reversed defendant’s
conviction for purposeful and knowing murder, the
prosecutor was permitted to retry defendant on that
charge or move before the trial court to un-merge the
lesser offense of felony murder and sentence defendant
thereon. Id. at 295-96; see State v. Smith, 279 N.J. Super.
131, 144 (App. Div. 1995) (where the sentencing court
was instructed to un-merge a sexual assault conviction
consequent to the appellate court’s reversal of the greater
offense of kidnaping for which retrial was precluded);
State v. Pindale, 249 N.J. Super. 266, 289-90 (App. Div.
1991) (where the reversal of an aggravated manslaughter
conviction was survived by a death by auto conviction),
certif. denied, 142 N.J. 449 (1995); see also State v.
Harrington, 310 N.J. Super. 272, 280-81 (App. Div.),
certif. denied, 156 N.J. 387 (1998).IV. MERGER AND APPEAL
In 1981, N.J.S.A. 2C:1-8a was amended to clarify
that a determination of merger must be made post-
verdict rather than pre-verdict. The purpose of the
amendment was to ensure that the State could appeal
erroneous merger-related decisions without double
jeopardy preclusions. State v. Berrios, 186 N.J. Super.
198, 202 n.2 (Law Div. 1982). The Supreme Court of
New Jersey affirmed this principle in State v. Rodriguez,
97 N.J. 263 (1984), holding that a defendant could be
re-sentenced following his successful appeal relating to
the merger of underlying convictions without offending
double jeopardy principles. The Court reasoned that
defendant’s attack of the underlying convictions on
appeal was dispositive that he had no legitimate