cdTOCtest

VI. MERGER AND SENTENCING

The doctrine of merger is a critical component of our
penal code, which often determines the structure of a
defendant’s sentence. Indeed, merger has its application
in all criminal conduct from the inception to the
conclusionary stages of a crime. The following illustrates
the effect of the merger doctrine on prepatory and
substantive crimes.

VII. MERGER AND PREPATORY CRIMES

A. Conspiracy

Until State v. Hardison, 99 N.J. at 383-84, “the law
traditionally considered conspiracy and the completed
substantive offense to be separate crimes” which did not
merge. Id. After the codification of N.J.S.A. 2C:1-8a(2),
which provides that a person may not be convicted of
more than one offense if “one offense consists only of a
conspiracy or other form of preparation to commit the
other,” the Hardison Court rejected that once prevailing
view. It rather held, in accord with the statutory rule,
that where the conspiracy proven does not have criminal
objectives beyond the substantive offense proven, the
offenses will merge. Id. at 380, 386. Conversely,
conspiracy will not merge if it exceeds the consummation
of the substantive offense. Id. at 386-87.

There are numerous examples where the courts have
merged conspiracy with its predicate offense. State v.
Williams, 317 N.J. Super. 149, 159 (App. Div. 1998)
(merging conspiracy into armed robbery conviction),
certif. denied, 157 N.J. 647 (1999); State v. Kamienski,
254 N.J. Super. at 114-15 (holding that a single
conspiracy involving the distribution of drugs could not
be broken into two separate conspiracies); State v. Neal,
229 N.J. Super. 28, 34 (1988) (holding that conspiracy
to commit armed robbery should be merged with the
substantive offense of armed robbery); In Re M.A., 227
N.J. Super. 393, 395 (Ch. Div. 1988) (holding that
conspiracy to possess a controlled dangerous substance
merged with the substantive conviction for actual
possession).

The offense for conspiracy will merge even where the
conspiracy offense encompassed a variety of substantive
crimes. State v. Malone, 269 N.J. Super. 414, 417 (Law
Div. 1993); but see State v. Taccetta, 301 N.J. Super. 227,
257-58 (App. Div.) (where the court declined to merge
defendant’s racketeering conspiracy conviction with his
two extortion convictions because the conspiracy

encompassed crimes that went beyond the extortion

offenses), certif. denied, 152 N.J. 188 (1997).

B. Possessory Offenses

In the spirit of State v. Hardison, supra, the Court has

also set as a general rule that a conviction for possession

of a weapon for unlawful purposes merges with its

predicate offense where a jury does not find that a

defendant possessed the firearm for a purpose

independent of the commission of the greater offense. In

State v. Loftin, 287 N.J. Super. 76, 111-12 (App. Div.

1995), certif. denied, 144 N.J. 175 (1996), the court held

that the use of a weapon for an unlawful purpose must

merge with the substantive offenses absent a special

verdict by the jury that the unlawful purpose was broader

than the substantive offenses for which defendant was

convicted. See also State v. Smith, 322 N.J. Super. 385,

400 (App. Div.), certif. denied, 62 N.J. 489 (1999); State

v. Cook, 300 N.J. Super. 476, 490 (App. Div. 1996); State

v. Vasquez, 265 N.J. Super. 528, 563-64 (App. Div.),

certif. denied, 134 N.J. 480 (1993); State v. Nutter, 258

N.J. Super. 41, 59 (App. Div. 1992).

Of course, the converse is also true -- that where there

existed an independent purpose for the weapon beyond

the commission of the substantive offenses, then merger

will not apply. In State v. Wilson, 128 N.J. 233, 245

(1992), the Court did not merge the offense of possession

of a weapon for an unlawful purpose with defendant’s

murder conviction where the record indicated that

defendant had used the murder weapon to threaten

someone else. In State v. Mance, 300 N.J. Super. 37, 64

(App. Div. 1997), the court refused to merge defendant’s

conviction for a possession of a weapon for an unlawful

purpose with other convictions since the unlawful

purpose was to injure as many corrections officers as

possible beyond those who were actually injured.

Similarly, in State v. Anderson, 198 N.J. Super. 340, 358-

59 (App. Div.), certif. denied, 101 N.J. 283 (1985), the

court did not merge a conviction for possession of an

unlawful weapon and a robbery conviction where

defendant’s transport of weapons to and from the scene

implied that they were possessed with broader purpose

beyond the commission of the robbery. And, in State v.

DeLuca, 325 N.J. Super. 376, 392-93 (App. Div. 1999),

certif. granted, 163 N.J. 79 (2000), the court did not

permit merger of defendant’s unlawful possession of a

handgun with his conviction for robbery because the

gravamen of each offense is different. See also State v.

Bowser, 297 N.J. Super. 588, 592 n.1 (App. Div. 1997);

State v. Johnson, 203 N.J. Super. 127, 135-36 (App.

Div.), certif. denied, 102 N.J. 312 (1985).