State v. Jones

• Decision Date: 13 November 1986
• Citation: 517 A.2d 1219,213 N.J.Super. 562
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ronald JONES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 562

213 N.J.Super. 562

517 A.2d 1219

STATE of New Jersey, Plaintiff-Respondent, v. Ronald JONES, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 21, 1986.

Decided Nov. 13, 1986.

Alfred A. Slocum, Public Defender, for appellant (Charles H. Landesman, Designated Counsel, of counsel and on the brief).

W. Cary Edwards, Atty. Gen., for respondent (Linda K. Calloway, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MICHELS and O'BRIEN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Ronald Jones was convicted of (1) two counts of armed robbery, crimes of the first degree, in violation of N.J.S.A. 2C:15-1 (First Count and Fourth Count); (2) two counts of aggravated assault, crimes of the third degree in violation of N.J.S.A. 2C:12-1b(2) (Second Count and Fifth Count); (3) possession of a weapon, to wit, a razor, under circumstances not manifestly appropriate for such lawful uses as it may have, a crime of the fourth degree, in violation of N.J.S.A. 2C:39-5d (Third Count); and (4) possession of a weapon, to wit, a razor, with a purpose to use it unlawfully, a crime of the third degree, in violation of N.J.S.A. 2C:39-4d (Sixth Count). The trial court (1) committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for concurrent terms of 15 years and assessed penalties aggregating $525, payable to the Violent Crimes Compensation Board for the two armed robberies (First and Fourth Counts); (2) committed defendant to the custody of the Commissioner for a consecutive term of four years for the one aggravated assault (Second Count) and for a concurrent term of four years for the other aggravated assault (Fifth Count) and also assessed penalties aggregating $50; and (3) committed defendant to the custody of the Commissioner for a concurrent term of four years and assessed a penalty of $25 for each of the possession of weapon convictions (Third Count and Sixth Count). In addition, the trial court imposed a parole disqualifier of five years upon defendant but did not assign the parole ineligibility term to a specific sentence or count of the indictment. Thus, in the aggregate, defendant was sentenced to 19 years imprisonment, with a five-year-period of parole ineligibility, and penalized $625. Defendant appeals, seeking a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:

POINT I THE COURT'S CHARGE TO THE JURY WITH RESPECT TO FLIGHT ON THE PART OF THE DEFENDANTS WAS PREJUDICIAL BECAUSE THE COURT FAILED TO STATE THAT DEFENDANT OFFERED AN EXPLANATION FOR LEAVING THE SCENE. ¹

POINT II THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE REFUSED TO SUBMIT THE ENTIRE CHARGE IN WRITTEN FORM TO THE JURY. (RAISED BY CO-DEFENDANT).

POINT III A TOTAL SENTENCE OF NINETEEN YEARS FOR THESE CRIMES WAS EXCESSIVE.

POINT IV DEFENDANT'S CONVICTION ON COUNTS TWO, THREE, FIVE AND SIX SHOULD HAVE MERGED WITH THE CONVICTIONS ON COUNTS ONE AND FOUR. (NOT RAISED BELOW).

POINT V THE CONCURRENT SENTENCE OF FOUR YEARS IMPOSED ON COUNT THREE WAS ILLEGAL.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that, with the exception of the challenges raised in Points IV and V of defendant's brief, they are clearly without merit. R. 2:11-3(e)(2).

We turn first to defendant's claim that there should have been a merger of his convictions (Point IV). Although defendant did not raise this issue before the trial court, he now contends that his convictions for aggravated assault (Second and Fifth Counts) and his convictions for unlawful possession of a weapon (Third and Sixth Counts) should merge with his convictions for armed robbery (First and Fourth Counts), and that, therefore, he only should have been sentenced on the latter two convictions. Defendant argues that because each count of unlawful possession charged him with possession of the same razor, they should merge. In the same vein, he argues that "[t]he proofs adduced at the trial ... indicated that [he] had a razor or blade in his hand while the attempted robberies and assaults took place." Thus, according to defendant, the evidence which led to his convictions for the armed robberies was identical to that which supported his assault and weapon possession convictions. He therefore reasons that the aggravated assault convictions, together with the weapon possession convictions, should merge with the armed robbery convictions and the sentences imposed on the Second, Third, Fifth and Sixth Counts should be vacated.

In evaluating a claim premised on the doctrine of merger, our courts have been guided by the fundamental principle that "[i]f an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77, 342 A.2d 841 (1975); State v. Best, 70 N.J. 56, 60-61, 356 A.2d 385 (1976). See also N.J.S.A. 2C:1-8 (which codifies the judicial analysis required in merger issues). The rule was stated by Judge (later Justice) Francis in State v. Hill, 44 N.J.Super. 110, 112, 129 A.2d 752 (App.Div.1957) as follows:

The test to be applied in deciding the issue of merger is 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 other constituent element of the whole crime. State v. Labato, 7 N.J. 137, 145, 146, 150 (1951); State v. Mowser, 92 N.J.L. 474, 483 (E. & A. 1919); State v. Cooper, 13 N.J.L. 361, 375 (Sup.Ct.1833); 15 Am.Jur., Criminal Law, § 386, p. 388 (1938). See also State v. Jamison, 64 N.J. 363, 380 (1974).

In addition to using this formulation, courts have relied upon the "same evidence" test and also a test which focuses upon the statutes violated. The statutory approach provides that "[i]f each statute [under which a defendant has been convicted] requires proof of a fact which is not required by the other, then the offenses are not the same and there is no merger." State v. Johnson, 203 N.J.Super. 127, 135, 495 A.2d 1367 (App.Div.1985), certif. den., 102 N.J. 312, 508 A.2d 195 (1985). More recently courts have employed broad, flexible concepts in resolving questions of merger.

Such an approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. Certainly there are other factors to be considered and, along with the above, accorded greater or lesser weight depending on the circumstances of the particular case. [Davis, supra, 68 N.J. at 81, 342 A.2d 841].

See also, State v. Truglia, 97 N.J. 513, 518-522, 480 A.2d 912 (1984); State v. Mirault, 92 N.J. 492, 501-504, 457 A.2d 455 (1983); Best, supra, 70 N.J. at 61-63, 356 A.2d 385.

Tracking defendant's argument, we first consider whether the unlawful possession convictions (Third and Sixth Counts) should merge. N.J.S.A. 2C:39-4d, which is the statutory basis for defendant's conviction on the Third Count, provides:

Any person who has in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the third degree. [Emphasis supplied].

N.J.S.A. 2C:39-5d, the unlawful possession statute under which defendant was charged and convicted in the Sixth Count, provides:

Any person who knowingly has in his possession any ... weapon [other than a machine gun, handgun, rifle or shotgun] under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.

The proof required for conviction under N.J.S.A. 2C:39-5d is the knowing possession of a weapon under circumstances not manifestly appropriate for a lawful use. State v. Lee, 96 N.J. 156, 163-164, 475 A.2d 31 (1984). Under N.J.S.A. 2C:39-4d, "in addition to proving knowing possession of a weapon, the State must prove an unlawful purpose." Johnson, supra, 203 N.J.Super. at 135, 495 A.2d 1367 (Emphasis supplied). Thus, all the elements of N.J.S.A. 2C:39-5d are part of the proof necessary to establish a violation of N.J.S.A. 2C:39-4d. The offense set forth in N.J.S.A. 2C:39-5d is a lesser included offense of the crime set forth in N.J.S.A. 2C:39-4d. Therefore, we hold that defendant's conviction under N.J.S.A. 2C:39-5d (Third Count) merges with his conviction under N.J.S.A. 2C:39-4d (Sixth Count).

Another aspect of the merger issue is whether defendant's convictions for unlawful possession should merge with his convictions for aggravated assault. Here, again, Johnson is instructive. The defendant in Johnson was convicted of aggravated assault, possession of a handgun without a permit and possession of a weapon for an unlawful purpose. We explained that [u]nder N.J.S.A. 2C:12-1b(1), aggravated assault, the State is required to show that a person attempted to cause or caused serious bodily injury purposely or knowingly, or under circumstances manifesting extreme indifference to the value of human life, recklessly caused serious bodily injury. [ Id. at 135, 495 A.2d 1367].

After enumerating the constituent elements of the unlawful possession offenses set forth in N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-4, we concluded that "[t]he two possession offenses have no elements in common with aggravated assault. It is clear that ... the crimes are completely separate and distinct." Ibid. Consequently, we hold here, as we did in Johnson, that the merger doctrine is inapplicable because "[a] guilty...