State v. Best

• Decision Date: 07 April 1976
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Tyrone BEST, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 56

70 N.J. 56

356 A.2d 385

STATE of New Jersey, Plaintiff-Appellant, v. Tyrone BEST, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 22, 1975.

Decided April 7, 1976.

Lowell Espey, Deputy Atty. Gen., for plaintiff-appellant (William F. Hyland, Atty. Gen., attorney, Lowell Espey, of counsel and on the brief).

David H. Ben-Asher, Orange, designated counsel, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney; David H. Ben-Asher, on the brief).

The opinion of the Court was delivered by

PASHMAN, J.

In this case, we are asked to determine whether a conviction for possession of a dangerous knife merges with a conviction for robbery while armed with said dangerous knife where both offenses arise from the same criminal episode.

I

On the evening of February 8, 1973, Robert Reynolds was in the Wonder Bar on Ocean Avenue in Asbury Park, playing pool and drinking beer. At approximately 11 p.m. defendant Tyrone Best and codefendant Gwendolyn Brown walked into the bar. Reynolds did not know either of them at the time. After he had finished his game of pool, Reynolds put on his coat and departed. Best and Brown left the bar a few moments later. While Reynolds was starting his car, Brown approached the driver's side of the vehicle, knocked on the window and asked Reynolds if she and her brother could have a ride to Embury Avenue in Neptune. Reynolds consented, whereupon Brown sat next to Reynolds in the front seat while Best sat in the back.

Reynolds then drove to Embury Avenue, where he stopped the car by putting his foot on the brake pedal while leaving the vehicle in 'drive.' At this point Best grabbed Reynolds around the neck, forced him down on the seat, stuck a knife into his cheek and threatened to kill him if he made any noise. After a few seconds, Reynolds felt blood trickling down his face. He observed that the knife was about six inches long and had a wooden handle. Brown took Reynolds' wallet which contained approximately $210.

Best then told Reynolds that he was going to take the vehicle in order to facilitate his escape, but would abandon it down the street. He again threatened to kill Reynolds if he made any noise. As Reynolds moved to put the car into 'park,' he felt the knife cut deeper into his cheek. Best asked Reynolds what he was doing. After Reynolds explained, Best allowed him to put the car into 'park' and then step out into the street. Best and Brown drove away. Reynolds soon recovered his automobile, returned to the bar to question some of the patrons about defendant's identity and from there was taken to the hospital where he received several stitches for his wound.

Defendant Best was apprehended and indicted for possessing a dangerous knife (N.J.S.A. 2A:151--41(c)), assault with an offensive weapon (N.J.S.A. 2A:90--3) and armed robbery (N.J.S.A. 2A:141--1 and 2A:151--5). The knife employed in the robbery was never found. In another count, codefendant Brown was charged with aiding and abetting defendant Best in violation of N.J.S.A. 2A:85--14.

At the close of the State's case at the ensuing trial, counsel for Best moved that the different charges be merged so that only the armed robbery count would be presented to the jury. The court reserved decision and, after summation by the parties, denied the motion. A subsequent request by defendant that the jury be charged that it could not return separate convictions unless it determined that separate and distinct crimes had been committed was also denied.

Defendants were found guilty on all counts. Best was sentenced to the New Jersey State Prison for a term of seven to ten years on the robbery count, a consecutive sentence of three to five years for armed robbery, a consecutive sentence of two to three years for assault with an offensive weapon and three to five years to be served concurrently with the other sentences for possession of a weapon. Codefendant Brown was sentenced for an indeterminate term to be served at the Correctional Institution for Women at Clinton.

The Appellate Division, in an unreported opinion which resolved a number of issues in addition to the merger question, vacated Best's convictions for possession of a dangerous knife and assault with an offensive weapon stating that 'the facts clearly show a single transaction' and that 'the possession of the knife and the assault with an offensive weapon were integral parts of the principal offense charged, namely the armed robbery.' The convictions for robbery and for armed robbery were affirmed as was codefendant Brown's conviction for aiding and abetting.

On January 29, 1975, we denied Best's petition for certification but granted the State's cross-petition for certification from that portion of the Appellate Division judgment vacating defendant's conviction for possession of a dangerous weapon. ¹ 67 N.J. 81, 335 A.2d 34 (1975). Consequently, the sole issue before this Court is whether Best's conviction for carrying and possessing a dangerous knife merges with his conviction for armed robbery. Having reviewed the circumstances of the case, we affirm the Appellate Division and hold that these convictions merge.

II

It has long been settled that one may not be punished twice for the same offense. State v. Jamison, 64 N.J. 363, 380, 316 A.2d 439, 448 (1974); State v. Roller, 29 N.J. 339, 346, 149 A.2d 238, 241 (1959); State v. Labato, 7 N.J. 137, 143, 145, 150, 80 A.2d 617, 620--621, 623 (1951); State v. Cooper, 13 N.J.L. 361, 375 (Sup.Ct.1833); State v. Hill, 44 N.J.Super. 110, 112, 129 A.2d 752, 753 (App.Div.1957). We have reaffirmed this principle on several occasions, most recently in State v. Davis, 68 N.J. 69, 342 A.2d 841 (1975), where Justice Clifford, speaking for a majority of the Court, discussed some of the policy considerations which underlie this fundamental proposition:

We are . . . in complete accord on this fundamental point: If an accused has committed only one offense, he cannot be punished as if for two. Hence, we reaffirm the prohibition against multiple punishment for a single wrongdoing. (Citations omitted.) Such a proscription not only tends to insure that the punishment imposed is commensurate with the criminal liability, by limiting judges and prosecutors alike to acting within the bounds of the legislative design but it also addresses the inevitable conflict between legislative attempts to stuff all kinds of anti-social conduct into the general language of a limited number of criminal offense categories, and the legislative desire not to be inordinately vague about what behavior is deemed 'criminal.' (68 N.J. at 77, 342 A.2d at 845).

Although we could not agree in that case as to the source of the principle, we found it unnecessary to determine whether the prohibition against double punishment for the same offense rests on principles of double jeopardy, substantive due process or some other legal tenet. 68 N.J. at 77, 342 A.2d 843. For purposes of deciding the instant case, we again find it unnecessary to resolve this theoretical legal question. It is sufficient that where an accused has been convicted for contemporaneous separate offenses which are, in fact or by legislative intent, indistinguishable, then the resulting convictions must be merged. ²

The problem of merger often arises when an accused participates in a single, continuous criminal episode and then is prosecuted for several crimes each of which represents a different stage of the episode. In the instant case, we proceed from two preliminary observations: first, that the principal offense, the robbery, Was a single, continuous criminal transaction and second, that the Legislature, by enacting the statutory provisions involved in this case, Did intend to interdict different crimes. See, e.g., State v. Ortiz, 124 N.J.Super. 189, 305 A.2d 800 (App.Div.1973), where, under facts different from those presented here, defendant was convicted of both possession of a dangerous knife and armed robbery. In merger cases of this sort, courts most often apply a standard which asks 'whether a particular act involved in a single transaction is a distinct criminal affair or an integral part of the principal offense charged. A prosecution for any part of a single crime bars any additional prosecution or sentence for the whole crime or any constituent element of the whole crime. . . .' State v. Hill, supra, 44 N.J.Super. at 112--13, 129 A.2d at 753; State v. Craig, 48 N.J.Super. 276, 279, 137 A.2d 430, 432 (App.Div.1958); Cf. State v. Hampton, 61 N.J. 250, 294 A.2d 23 (1970). Just last year, in State v. Jamison, supra, 64 N.J. at 380, 316 A.2d at 448, we cited this passage with approval and held it to be the correct rule. While accurate as a general proposition of law, the test is of only limited utility since it fails to delineate the precise meaning of a 'single crime.'

In recent years this Court has eschewed a mechanical application of the traditional 'offense-defining' criteria for 'sameness,' which are contained in the all-too-narrow 'same evidence,' 'same transaction,' or 'lesser-included offense' tests. In State v. Gregory, 66 N.J. 510, 514--17, 333 A.2d 257, 259--261 (1975), Justice Jacobs examined the authorities in support of these tests and concluded that their narrow or mechanical application could result in either harassment of the defendant or frustration of the State's goal to bring the guilty to justice. See also State v. Currie, 41 N.J. 531, 197 A.2d 678 (1964); State v. Berry, 41 N.J. 547, 197 A.2d 687 (1964); State v. Thomas, 114 N.J.Super. 360, 364--65, 276 A.2d 391, 393 (Law Div. 1971), mod. 61 N.J. 314, 294 A.2d 57 (1972). Recognizing that these standards 'were not absolute in nature, that the emphasis should be placed on underlying policies rather than on technisms, and that primary consideration should be given to factors of fairness and fulfillment of reasonable expectations,' State v. Berry, supra, 41 N.J. at 551, 197 A.2d...