For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. 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.
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.*fn1 67 N.J. 81 (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 ...