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).*fn1 Defendants appeal.
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 (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 espisode, 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 (1964); State v. Montague, 101 N.J. Super. 483, 489 (App. Div. 1968), mod. on other grounds 55 N.J. 387, 406-407 (1970); State v. Mills, 51 N.J. 277, 289 (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 (App. Div. 1958); State v. White, 105 N.J. Super. 234, 236-237 (App. Div. 1969), certif. den. 54 N.J. 242 (1969). The fact that separate crimes may have been committed closely in point of time does not operate to merge them into
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 (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]
And in State v. Baldino, 11 N.J. Super. 158, 162 (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 (App. Div. 1960), certif. den. 33 N.J. 109 (1960); State v. Morrison, 25 N.J. Super. 534, 543 (Cty. Ct. ...