For modification -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None. The opinion of the court was delivered by Sullivan, J.
These two appeals grow out of a single criminal episode in which both Leon Richardson and Emory Johnson, defendants herein, were involved. They were jointly indicted on several counts but were tried separately. Each was found guilty. The basic issue in each case was and is identical with the question involved in State v. Moran, also decided by us this date. 73 N.J. 79 (1977).
The State's proofs at the separate trials may be summarized as follows. On December 15, 1971, at about 1:45
a.m., Officer John Papa of the Roselle Police Department was on foot patrol duty on St. George Avenue. As he was walking along he was approached by defendant Richardson who engaged him in conversation. While they were talking, defendant Johnson came up behind the officer, struck him over the head several times with a length of pipe and knocked him to the ground. The officer's gun was then taken by Richardson and the two defendants ran off. The purpose of the attack on the officer was to secure a gun for use in other criminal activities.
After defendants were apprehended, they were jointly indicted and charged with the following offenses: Count 1, atrocious assault and battery, a violation of N.J.S.A. 2A:90-1; Count 2, assault with intent to kill, a violation of N.J.S.A. 2A:90-2; Count 3, assault and battery upon a police officer acting in the performance of his duties while in uniform, a violation of N.J.S.A. 2A:90-4; Count 4, robbery of the officer's revolver, a violation of N.J.S.A. 2A:141-1; Count 5, being armed with a dangerous instrument, namely a bludgeon, at the time, a violation of N.J.S.A. 2A:151-5; Count 6, possession of a dangerous instrument, namely a bludgeon, in a public area, a violation of N.J.S.A. 2A:151-41(c); Count 7, possession of a dangerous instrument, namely, a bludgeon, with intent to use the same unlawfully against another, a violation of N.J.S.A. 2A:151-56.
As heretofore noted, defendants were tried separately by jury. Each was found guilty at his separate trial on all counts except for Count 2 (assault with intent to kill). As to this count, Johnson was found not guilty and Richardson had it dismissed at the close of the State's proofs. Each defendant received State Prison sentences aggregating 12 to 15 years.*fn1 Each filed a separate appeal.
On Johnson's appeal, the Appellate Division, in an unreported opinion, affirmed the judgment of conviction. It noted the State's concession that in the factual situation presented, defendant's conviction on Count 6 (possession of a dangerous instrument, a bludgeon) merged with his conviction on Count 7 (possession of the same bludgeon with intent to use it unlawfully against another). The Appellate Division agreed that the charge of possession was an included offense in the charge of possession with intent. Accordingly, it vacated the conviction and sentence as to Count 6.
The Appellate Division was satisfied that there was no merger of the remaining convictions and that as to Counts 1, 3, 4 and 5 each of the proscribed activities presented a separate and distinct danger which the Legislature determined to combat.
Defendant Johnson's petition for certification makes the single contention that the charge contained in Count 1 (atrocious assault and battery) and Count 3 (assault and battery upon a police officer acting in the performance of his duties while in uniform) should merge. We granted his petition to consider this question. 68 N.J. 490 (1975).
On Richardson's appeal the Appellate Division, in an unreported opinion, affirmed the judgment of conviction but modified it in two respects. First, it held that the charges contained in Count 1 (atrocious assault and battery) and Count 3 (assault and battery on a police officer) should have been treated as a single criminal incident for which defendant could receive a single sentence only. Second, it held that the charges contained in Counts 6 and 7, which charged possession of the bludgeon and possession of the same bludgeon with intent to use it unlawfully, under ...