Defendant was indicted for aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count 1); possession of a knife for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count 2), and possession of the knife under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5(d) (count 3). Tried before a jury, he was convicted of aggravated assault by recklessly causing bodily injury with a deadly weapon (N.J.S.A. 2C:12-1(b)(3)) as a lesser-included offense on the first count. He was also convicted of violating N.J.S.A. 2C:39-5(d) as charged in the third count. Defendant moved at sentencing for "merger" of the possession charge into the conviction for the assault.
There is no question but that the knife possessed in violation of N.J.S.A. 2C:39-5(d) was the "deadly weapon" (N.J.S.A. 2C:11-1(c)) which caused the bodily injury. The victim testified that defendant purposely stabbed him without provocation following some dispute among members of the extended family with which they both were living. Defendant asserts that he acted in self-defense while being attacked by the victim who was himself intoxicated.*fn1 Defendant claims that he inadvertently carried the knife in his belt onto the street where the incident occurred because he was suddenly advised (while cooking the family dinner) that his dog was loose and roaming the neighborhood.
State v. Davis, 68 N.J. 69 (1975), and State v. Best, 70 N.J. 56 (1976), embody the Supreme Court's most authoritative views of the law of "merger." While it has held that "one may not be punished twice for the same offense," State v. Best, at 60 the court has not resolved whether the principle is based upon substantive due process, double jeopardy or "some other legal tenet." Id. at 61. Essentially, the question was whether a particular act of a single transaction involved a distinct crime or was an integral part of the principal offense. Various factors were to be considered, including
See, also, State v. Davis, supra 68 N.J. at 81; State v. Jamison, 64 N.J. 363 (1974).
The court also recognized that "fractionalization" of offenses was permissible where the Legislature so intended and there was no violation of due process or double jeopardy. State v. Best, at 69. See also, e.g., Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981).
In Best the Supreme Court "merged" a conviction for possession of a dangerous weapon (a knife) into a conviction for armed robbery. The court found the time interval to be significant and found no evidence that Best either carried his knife before the robbery or for any purpose other than the robbery. Id. at 66.
Whether there would be "merger" under Best and prior case law is not the exclusive question, however, in this case arising under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq.
Except for chapter 20 of the Code, N.J.S.A. 2C:1-8 appears to set forth the legislative intent concerning the subject. N.J.S.A. 2C:1-8(a) provides:
When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He
may not, however, be convicted of more than one offense if: (1) One offense is included in the other as defined in ...