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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).
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