State v. Bono

• Decision Date: 09 May 1974
• Citation: 319 A.2d 762,128 N.J.Super. 254
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Peter BONO, Jr., Robert Lombard, and Eugene Meyers, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 254

128 N.J.Super. 254

319 A.2d 762

STATE of New Jersey, Plaintiff-Respondent, v. Peter BONO, Jr., Robert Lombard, and Eugene Meyers Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued April 9, 1974.

Decided May 9, 1974.

Rosemary K. Reavey, Asst. Public Defender, for appellant Peter Bono, Jr. (Stanley C. Van Ness, Public Defender, attorney).

Wolin & Garrubbo, Elizabeth, submitted a statement in lieu of brief on behalf of appellant Robert Lombard.

Michael N. Tobin, Rahway, for appellant Eugene Meyers (Shevick, Ravich, Koster & Baumgarten, Rahway, attorneys).

Elson P. Kendall, Asst. Pros., for respondent (Karl Asch, Union Co. Pros., attorney).

Before Judges COLLESTER, LYNCH and MICHELS.

The opinion of the court was delivered by

MICHELS, J.A.D.

This is a consolidated appeal by three defendants from convictions of rape in violation of N.J.S.A. 2A:138--1 (count 1), assault with intent to commit rape in violation of N.J.S.A. 2A:90--2 (count 2), and lewdness in violation of N.J.S.A. 2A:115--1 (count 3). The court merged the convictions of rape (count 1) with those of assault with intent to rape (count 2) for purposes of sentencing and sentenced each of the defendants on those counts to a single indeterminate term in the Youth Correctional Institution with a maximum fixed at 17 years, and to consecutive indeterminate terms with a maximum fixed at three years on the convictions of lewdness (count 3). ¹ Defendants appeal.

I

All defendants raise as plain error that the offenses of rape, assault with intent to commit rape, and lewdness involved a single transaction and, therefore, merged. It is well settled that the crime of assault with intent to rape is necessarily a constituent element of the greater crime of rape, and that these two crimes merge when a conviction for the greater offense ensues. State v. Riley, 28 N.J. 188, 195, 145 A.2d 601 (1958), cert. den. 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959), petition for writ of habeas corpus denied and cert. den. 361 U.S. 879, 80 S.Ct. 166, 4 L.Ed.2d 117 (1959). Accordingly, the convictions of assault with intent to rape merged into the convictions of rape, and the trial court should have vacated the lesser convictions of assault with intent to commit rape.

The State argues that since the trial court merged both convictions for purposes of sentencing and imposed a single indeterminate sentence, defendants were not prejudiced. We disagree. Since the convictions on these two counts merged, defendants' records should reflect only the convictions for rape, and not the convictions for assault with intent to commit rape as well. Accordingly, the judgments of convictions of assault with intent to rape are vacated.

Defendants' argument that the trial court erred in not treating the crime of lewdness as having merged with the crime of rape, at least for purposes of sentencing since they constituted a single criminal episode, is totally lacking in merit. A reading of the two statutes under which defendants were indicted readily reveals that separate and distinct crimes are involved. Each prohibits separate and distinct criminal acts, and the evidence necessary to convict under each statute is clearly different. See State v. Currie, 41 N.J. 531, 537--539, 197 A.2d 678 (1964); State v. Montague, 101 N.J.Super. 483, 489, 244 A.2d 699 (App.Div.1968), mod. on other grounds 55 N.J. 387, 406--407, 262 A.2d 398 (1970); State v. Mills, 51 N.J. 277, 289, 240 A.2d 1 (1968), cert. den. 393 U.S. 832, 89 S.Ct. 105, 21 L.Ed.2d 104 (1968); State v. Craig, 48 N.J.Super. 276, 279, 137 A.2d 430 (App.Div.1958); State v. White, 105 N.J.Super. 234, 236--237, 251 A.2d 766 (App.Div.1969), certif. den. 54 N.J. 242, 254 A.2d 789 (1969). The fact that separate crimes may have been committed closely in point of time does not operate to merge them into a single crime. State v. Chevencek, 127 N.J.L. 476, 479, 23 A.2d 176 (Sup.Ct.1941); State v. McFadden, 32 N.J.Super. 258, 261, 108 A.2d 204 (App.Div.1954).

N.J.S.A. 2A:115--1 provides in pertinent part that '(a)ny person who * * * in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor.' 'Lewdness' was defined in the context of an earlier version of this statute (R.S. 2:140--1) in State v. Brenner, 132 N.J.L. 607, 41 A.2d 532 (E. & A.1945), as follows:

Lewdness, within the concept of the statute, imports some degree of sexual aberration or impurity. It denotes gross and wanton indecency in the sexual relations. (at 610, 41 A.2d at 534)

And in State v. Baldino, 11 N.J.Sper. 158, 162, 78 A.2d 95, 97 (App.Div.1951), as 'the irregular indulgence of lust, whether public or private.' N.J.S.A. 2A:115--1 has been held to comprehend commission of acts of fellatio. See State v. Fleckenstein, 60 N.J.Super. 399, 159 A.2d 411 (App.Div.1960), certif. den. 33 N.J. 109, 162 A.2d 338 (1960); State v. Morrison, 25 N.J.Super. 534, 543, 96 A.2d 723 (Cty.Ct.1953). But Cf. State v. Dorsey, 64 N.J. 428, 433, 316 A.2d 689 (1974). Defendants do not argue to the contrary.

N.J.S.A. 2A:138--1 provides in pertinent part:

Any person who has carnal knowledge of a woman forcibly against her will * * * is guilty of a high misdemeanor. * * *

' Carnal knowledge' or 'rape' involves actual sexual penetration of the sexual organ of the female by the sexual organ of the male. Application of Faas, 42 N.J.Super. 31, 35, 125 A.2d 724 (App.Div.1956), cert. den. 353 U.S. 940, 77 S.Ct. 820, 1 L.Ed.2d 762 (1957); State v. Hummer, 73 N.J.L. 714, 718, 65 A. 249 (E. & A.1906), pet'n for reh'g den. 81 N.J.L. 430, 67 A. 294 (E. & A.1906); State v. Riley, Supra, 49 N.J.Super. 570, at 584, 140 A.2d 543 (App.Div.1958).

It is obvious that each of these statutes requires proof of completely different conduct to sustain a conviction under each one.

The commission of sodomy per anum or per os is not the commission of a rape, although both offenses involve carnal knowledge of the victim, since carnal knowledge in its generally accepted meaning signifies sexual intercourse * * * while sodomy involves abnormal and perverted sexual relations. * * * (75 C.J.S. Rape § 5 at 466 (1952))

Moreover, generally it has been held that a conviction or an acquittal for rape does not bar a prosecution for lewd and lascivious conduct or for sodomy. 22 C.J.S. Criminal Law § 292 at 767--768 (1961). Accordingly, the offense of rape and that of lewdness or carnal indecency were based on separate and distinct prohibited acts. Neither act was a necessary part of the other. Each constituted independently a criminal offense, for which separate sentences were proper.

II

Defendants Meyers and Lombard further contend that the out-of-court identifications of them made by the victim were so impermissibly suggestive as to result in a denial of due process, and that the victim did not have an independent basis to identify them in the court room so as to validate the in-court identification. ²

The United States Supreme Court has held that whether an out-of-court identification was so unnecessarily suggestive and conductive to irreparable mistaken identification so as to deprive defendant of due process of law, depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Subsequently, in Simmons v. United States, 390 U.S. 377, 383--384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1938), where the court was concerned with the validity of a pre-arrest identification of photographs of defendant by an eyewitness to the crime, the court reaffirmed its holding in Stovall and held that in determining the admissibility of an incourt identification after a suggestive out-of-court identification, each case must be considered on its own facts. In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), the Supreme Court held that the standard for the admissibility of testimony concerning an out-of-court identification is whether there is a very substantial likelihood of misidentification, even where the confrontation procedure was suggestive. The factors to be considered in such an evaluation include 'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'

In State v. Farrow, 61 N.J. 434, 294 A.2d 873 (1972), cert. den. 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1973), our Supreme Court enunciated the test for determining the admissibility of such out-of-court identifications as follows:

Impermissive suggestibility is to be determined by the totality of the circumstances of the identification. It is to be stressed that the determination can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist. What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer. The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge. * * * (at 451, 294 A.2d at 882) The function of this court as a reviewing court is to decide whether, considering the evidence as a whole, the trial judge could reasonably conclude that the identification procedure was not so impermissibly suggestive as to give rise to...