On appeal from the Superior Court of New Jersey, Law Division, Resentencing Panel.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Ard, J.A.D.
[183 NJSuper Page 392] Defendant appears before us for the second time in this matter. In Docket A-268-77, decided March 28, 1979, he contended, among other things, that the several offenses charged
should have merged. We found merit in the argument, and in an unpublished opinion, we held three of the convictions merged with a fourth conviction.
Originally, defendant was charged in a four-count indictment: count 1, illegal possession of a dangerous knife (N.J.S.A. 2A:151-41(c)); count 2, an assault with intent to kill (N.J.S.A. 2A:90-2), while armed (N.J.S.A. 2A:151-5); count 3, an atrocious assault and battery (N.J.S.A. 2A:90-1), and count 4, an assault with an offensive weapon (N.J.S.A. 2A:90-3). He was found guilty on all counts and was sentenced on each count. The aggregate term of the sentences on the four counts totaled no less than 20 nor more than 22 years. As indicated, we held that all of the charges merged with count 2, i.e. , assault with intent to kill (N.J.S.A. 2A:90-2), while armed (N.J.S.A. 2A:151-5). The aggregate sentence on count 2 amounted to a term of not less than 20 years nor more than 22 years. The merger did not reduce the overall aggregate sentence.
After the effective date of the New Jersey Code of Criminal Justice, defendant filed a motion to review his sentence. N.J.S.A. 2C:1-1d(2). The motion was transferred to the three-judge Resentencing Panel which was constituted by directive of the Supreme Court (see 104 N.J.L.J. 489 (December 6, 1979)). After conducting a hearing the Panel concluded that the remaining conviction, assault with intent to kill while armed, comprises two separate offenses under the newly enacted Code of Criminal Justice. It found the congruent offense for assault with intent to kill (N.J.S.A. 2A:90-2) to be attempted murder under N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1. It also determined that the pre-Code charge of being armed while committing the crime (N.J.S.A. 2A:151-5)*fn1 found its equivalent under the Code in the crime of possession of a weapon for an unlawful purpose proscribed by N.J.S.A. 2C:39-4 d. The Panel, after making an implicit finding of good cause, granted the reduction request
and imposed a ten-year sentence for the attempted murder conviction and an additional five-year sentence for possession of a weapon for an unlawful purpose. It determined his total sentence to be 15 years and further found he should not be eligible for parole for a period of 5 years. Defendant appeals and urges the following:
POINT I -- The Resentencing Panel erred by adding an additional five years onto defendant's ten year sentence for attempted murder.
POINT II -- The sentence imposed by the Resentencing Panel below was manifestly excessive.
In making its determination of equivalency, the Panel rationalized that the congruent offense for assault with intent to kill is attempted murder under the Code. A criminal attempt in the case of murder is an offense of the second degree which carries a maximum penalty of ten years. N.J.S.A. 2C:11-3; N.J.S.A. 2C:5-1 and 4; N.J.S.A. 2C:43-6 a(2). Defendant does not dispute this determination and we do not disagree.
In addition, the Panel sentenced the defendant to an additional five years for possessing a weapon with the purpose of using it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4. It theorized that N.J.S.A. 2C:39-4 was the congruent offense for the enhanced penalty provision permitted under N.J.S.A. 2A:151-5 for committing a crime "while armed." It is this latter determination which causes us difficulty.
The New Jersey Code of Criminal Justice abolished all crimes, both statutory and common law, except those defined by the Code or another statute. N.J.S.A. 2C:1-5 a. Prior to the Code, under N.J.S.A. 2A:151-5, an individual who employed a weapon while committing certain crimes was subject to an enhanced penalty as a result of being armed. The Code does not contain a like provision. Instead of a general enhancement statute, the Code provides for individual increased penalties for certain crimes. See, e.g., N.J.S.A. 2C:15-1 b, elevating robbery from second to first degree if the actor was ...