The issue of merger becomes more difficult where the
jury’s verdict respecting the use of the weapon is
ambiguous. The court in State v. Williams, 213 N.J.
Super. 30, 36 (App. Div. 1986), certif. denied, 107 N.J.
104 (1987), enumerated the factors by which merger
should be determined in such circumstances:
(1) the defendant must have been charged in the
indictment with possession of the weapon with a broader
unlawful purpose, either generally or specifically, than
using the weapon to kill or assault the victim of the greater
offense, (2) the evidence must support a finding that the
defendant had a broader unlawful purpose, (3) the judge
must have instructed the jury of the difference between
possession with the specific unlawful purpose of using the
weapon against the victim of the greater offense and a
broader unlawful purpose and (4) the verdict must
express the jury’s conclusion that the defendant had a
broader unlawful purpose.
Thus, in State v. Diaz, 144 N.J. 628, 636 (1996), the
Court declined to merge defendant’s possessory
conviction where the jury instructions and record alike
were insufficient to find a broader unlawful purpose for
the murder weapon beyond the substantive crime. In
State v. Bull, 268 N.J. Super. at 515-16, the court was
compelled to merge defendant’s conviction for possession
of a weapon for an unlawful purpose with his armed
robbery conviction on the grounds that, although two
knives were involved, the court could not discern from the
verdict whether or not the jury found that the facts
supported merger and would not penalize defendant for
this ambiguity. See also State v. Gibson, 318 N.J. Super.
1, 11-12 (App. Div. 1999) (holding that defendant’s
convictions for possession of a controlled dangerous
substance and possession of a controlled dangerous
substance with intent to distribute should have been
merged, absent a special verdict sheet, because neither
the judge’s charges nor the verdict sheet gave the jury any
indication that the two were distinct of one another; also
the record suggests that defendant was simultaneously
holding all substances).
In this regard, the Court lauded the use of special
verdicts “to facilitate the determination of the grade of
the offense under the Code of Criminal Justice or
otherwise simplify the determination of a verdict when
multiple charges are submitted to the jury” and
particularly to “avoid reversal of ambiguous verdicts.”
State v. Diaz, 144 N.J. at 642-44. The Court, however,
declined to require the use of such special verdicts as a per
se rule, particularly since such a requirement would
unnecessarily restrict the court’s discretion concerning
merger of convictions at sentencing. Id. at 643; see also
State v. Camacho, 153 N.J. 54, 69-70 (1998), cert. denied,
525 U.S. 864, (1998); State v. Petties, 139 N.J. 310, 313-
14 (1995).As these offenses implicate the Graves Act, it is well
to note that when a Graves Act crime merges with a non-
Graves Act crime, the sentence must be at least equal in
length to the mandatory minimum sentence that is
required for a Graves offense. State v. Connell, 208 N.J.
Super. 688, 696 (App. Div. 1986). If, however, the
sentencing guidelines do not allow for a sentence of that
length for a non-Graves offense, than merger of the two
offenses would be improper. Id. at 697.VIII. MERGER AND SUBSTANTIVE OFFENSES
The guidepost for the merger of substantive offenses
is that “convictions for lesser-included offenses, offenses
that are a necessary component of the commission of
another offense, or offenses that merely offer an
alternative basis for punishing the same criminal conduct
will merge.” State v. Brown, 138 N.J. 481, 561 (1994),
overruled o.g., State v. Cooper, 151 N.J. 326 (1997).
There are numerous cases that exemplify these basic
principles of merger.The following are examples of the merger of lesser
included offenses: In State v. Cooper, 151 N.J. at 406, the
Court merged defendant’s aggravated sexual assault
conviction with his kidnaping conviction since sexual
assault was subsumed in the kidnaping statute, N.J.S.A.
2C:13-1c(2). In State v. Lawson, 217 N.J. Super. 47, 50
(App. Div. 1987), defendant’s convictions for second-
degree robbery and fourth-degree theft merged since the
former was a necessarily included element in the robbery.
See also State v. Zeidell, 154 N.J. 417, 433 (1998)
(merging lewdness with sexual assault); State v. Van
Valen, 316 N.J. Super. 20, 21 (App. Div. 1998) (merging
terroristic threats with first-degree robbery), certif.
denied, 163 N.J. 78 (2000); State v. Doss, 310 N.J. Super.
450, 462 (App. Div.) (merging terroristic threats with
aggravated assault), certif. denied, 155 N.J. 589 (1998);
State v. Robinson, 266 N.J. Super. 268, 282 (App. Div.
1993) (merging aggravated assault with attempted
murder), rev’d o.g., 136 N.J. 476 (1994).The following illustrates the merger of offenses that
are a necessary component of the commission of another
offense: In State v. Wallace, 313 N.J. Super. 435, 438-39
(App. Div.), aff’d 158 N.J. 552 (1998), the court merged
careless driving with a second-degree eluding offense
because both embodied the same elements. In State v.