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State v. Hardison

Decided: June 6, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
KENNETH HARDISON AND JERRY JACKSON, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

[99 NJ Page 380] This appeal concerns the circumstances under which a conviction for a criminal conspiracy and a completed offense that was an object of the conspiracy will merge. Specifically, the appeal concerns N.J.S.A. 2C:1-8a(2), which provides that a defendant may not be convicted of more than one offense if "one offense consists only of a conspiracy or other form of preparation to commit the other." We hold that if the conspiracy proven has criminal objectives other than the substantive offense proven, the offenses will not merge. In this case the conviction does not establish that the conspiracy embraced criminal objectives in addition to the offense proven. Hence, we affirm the judgment below that merged the conviction of conspiracy with the completed offense.

I

The case arises from two incidents, commencing on the evening of November 19, 1980. At approximately 11:30 p.m., four men entered the Lincoln Cafe in New Brunswick. After about twenty minutes, when the crowd had thinned out, one of the defendants pulled out a gun, pointed the gun at the bartender and forced him to lie face down behind the bar. Two of the men herded the two remaining patrons, a man and a woman, into the bathroom. The four cleaned out the cash register, and took the bartender's watch and the woman's purse. All three victims were then locked in the men's room with a cigarette machine in front of the door. The four fled.

Within minutes the bartender pushed the door open and alerted the New Brunswick police. They came immediately to the scene, gathered information, and obtained identification of the defendants. The police learned that the four men had fled in a red and white Cadillac.

Before they were able to return to the New Brunswick stationhouse, the police heard on the radio that a robbery had taken place at the Edison Motor Lodge, north of New Brunswick on Route 1. Edison officers on patrol had spotted a suspicious car traveling on Route 1 with its lights off. They began to follow the car. They soon heard on the police radio that a robbery had taken place at the Edison Motor Lodge. They learned as well that a red and white Cadillac had been involved in a robbery in New Brunswick. Other police joined the chase. A high-speed pursuit took place up Route 1 and onto the Garden State Parkway. The chase ended when the car ran into a cement divider at Parkway Exit 131 in Clark Township.

At the Edison Motor Lodge, the night manager reported that two men had come into the premises and asked about the price of a room. They went out, came back in with a gun, and robbed him at gunpoint of the motel's property. One of the defendants threatened to kill him; the other brutally assaulted him with brass knuckles, shattering his teeth.

Hardison and Jackson were found within close proximity of the car that had crashed in Clark Township. They were taken to the Clark police station. The woman's purse was retrieved from the car as was a key to the Edison motel room. New Brunswick police took the three witnesses from the Lincoln Cafe to the Clark police station where they were shown Hardison and Jackson alone with a group of police officers. They identified Hardison and Jackson as being involved in the Lincoln Cafe robbery, although neither was identified as the gunman. The night manager at the Edison motel did not identify Hardison and Jackson on that night. He was shown the defendants later. He identified them as his assailants. Two other suspects were soon apprehended.

The four were charged with conspiracy to commit robbery, four counts of robbery of the three people in the tavern and the night manager at the motel, possession of a gun for an unlawful purpose, aggravated assault of the night manager; and Hardison was charged with possession of brass knuckles for an unlawful purpose. The trial of two co-defendants was severed. Hardison and Jackson went to trial together.

The jury acquitted these two defendants of the robbery of the Lincoln Cafe, but convicted them on all other charges. Each was sentenced to an aggregate term of twenty years with five years of parole ineligibility. Separate and consecutive sentences were imposed on the conspiracy and robbery counts. On appeal, the Appellate Division, in two separate opinions, affirmed on all issues but merger, concluding that because the illegal agreement included robbery and the jury found defendants guilty of the motel robbery within the ambit of the conspiracy, the convictions for both the conspiracy and the robbery were barred. It also ruled that the convictions of unlawful possession of a handgun and robbery should be merged. Both the State and the defendants petitioned for review. We granted the State's petition for certification, limited solely to the issue of whether the conviction for conspiracy to commit robbery should have merged with that of armed

robbery. 99 N.J. 154 (1984). The defendants' cross-petitions were denied, 99 N.J. 155 (1984). We now affirm.

II

The law of conspiracy serves two independent values. First is the protection of society from the danger of concerted criminal activity. See Callanan v. United States, 364 U.S. 587, 593, 81 S. Ct. 321, 325, 5 L. Ed. 2d 312, 317 (1961). The second aspect is that conspiracy is an inchoate crime. "This is to say, that, although the law generally makes criminal only antisocial conduct, at some point in the continuum between preparation and consummation, the likelihood of a commission of an act is sufficiently great and the criminal intent sufficiently well formed to justify the intervention of the criminal law." United States v. Feola, 420 U.S. 671, 694, 95 S. Ct. 1255, 1268, 43 L. Ed. 2d 541, 558 (1975) (citing Note, "Developments in the Law -- Criminal Conspiracy," 72 Harv.L.Rev. 920, 923-925 (1959)). Thus, the law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order, therefore permitting the imposition of criminal sanctions for the agreement alone, regardless of whether the crime agreed upon actually is committed.

In New Jersey, as elsewhere, prior to the adoption of the 1979 Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:98-4 (the Code), the law traditionally considered conspiracy and the completed substantive offense to be separate crimes. State v. Cormier, 46 N.J. 494, 501 (1966); Callanan v. United States, supra, 364 U.S. at 593-94, 81 S. Ct. at 325, 5 L. Ed. 2d at 317. Accordingly, the conspiracy to commit an offense and the subsequent commission of that crime normally did not merge. Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180,

1181, 90 L. Ed. 1489, 1494 (1946); State v. Oats, 32 N.J. Super. 435, 439-40 (App.Div.1954).*fn1

The reason for the rule was the common law's deep distrust for criminal combinations. The group activity was seen as posing a "greater potential threat" to the public than individual crime. Callanan v. United States, ...


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