Michels, Pressler and Bilder. The opinion of the court was delivered by Pressler, J.A.D.
[157 NJSuper Page 233] Defendant was convicted by a jury of nine separate offenses arising out of his participation with two confederates in the armed robbery of a bank during which a bank guard and one of the confederates shot and killed each other. Following the return of the verdict,
defendant was sentenced to consecutive life terms for the two felony murders and to concurrent prison terms for the offenses of conspiracy to commit robbery of a bank, possessession of revolvers without permit and receiving stolen revolvers. The remaining four convictions were merged with the two murder convictions.
Defendant's attorney predicates this appeal on three assertions of error: first, that the conviction for the murder of the confederate must be set aside as not constituting felony murder pursuant to N.J.S.A. 2A:113-1; second, that the conviction for possession of firearms without a permit merged either with the conviction for receiving firearms or with the merged armed robbery convictions; and third, that the trial court mistakenly exercised his discretion in discharging a juror after deliberations had begun and substituting an alternate juror for the discharged juror. In addition, defendant has filed a pro se brief which argues that he was improperly denied his right to be present at every critical stage of the trial by reason of his absence from the in camera hearing which resulted in the juror's excuse.
Defendant is correct in his first contention and the State so concedes. The pertinent circumstances here are indistinguishable from those which were before the Supreme Court in State v. Canola , 73 N.J. 206 (1977), and State v. Alston , 73 N.J. 228 (1977). Accordingly, defendant is entitled to an acquittal on the second count of the indictment and a vacation of the sentence imposed on the conviction thereof.
We find no merit in the contention that the conviction for possession of firearms merged either with the conviction of receiving stolen property or the conviction of armed robbery. State v. Best , 70 N.J. 56, 66-67 (1976), expressly indicates the nonmerger of the possession charge with the armed robbery charge where firearms are involved. We are, moreover, satisfied that the elements of the crime of possession of a firearm without a permit (N.J.S.A. 2A:151-41(a))
and the elements of the crime of receiving stolen property (N.J.S.A. 2A:139-1) are distinct and hence that proof of one of the crimes is neither coextensive with nor dependent upon proof of the other. See State v. Best, supra , 70 N.J. at 63. And see State v. McGee , 131 N.J. Super. 292, 299 (App. Div. 1974).
The third of defendant's contentions relating to the discharging of a juror during deliberations raises a novel issue since there has been no previous judicial construction of the 1972 amendment of R. 1:8-2(d), pursuant to which the trial court exercised its discretion. That amendment provides that
If the alternate jurors are not discharged and if at any time after submission of the case to a jury, a juror dies or a juror is discharged by the court because he is ill or otherwise unable to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged.
The problem with which the trial judge was here confronted developed when, some six hours after deliberations had begun, one of the jurors sent the judge a note stating that "I am getting sick." The judge called both counsel into chambers and, on the record, advised them of her intention to question the juror in their presence in order to determine the nature of her difficulty and to instruct the jury to suspend their deliberations in the meantime. Both counsel agreeing to this procedure, the juror was brought into chambers and the following colloquy took place:
THE COURT: First of all, I just want to tell you that I received
your note. Please don't in any way tell me anything
that is going on in the jury room relating to delibera-