On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
O'Brien, Havey and Stern. The opinion of the court was delivered by O'Brien, J.A.D.
This case involves the "unmerging" prior to resentencing of two convictions which had been merged before imposition of the original sentence. Defendant appeals from separate consecutive sentences imposed upon him on resentencing for convictions of robbery (N.J.S.A. 2C:15-1a(1)) and aggravated assault (N.J.S.A. 2C:12-1b(1)). The two convictions had been merged prior to his original sentence, but were "unmerged" prior to resentencing, which had been ordered upon the vacation of his original sentence as illegal, on defendant's petition for post-conviction relief. We affirm.
On February 4, 1981, defendant and another man approached Rita Anderson who is blind in one eye, her husband Olaf Anderson, age 70, who has only one leg, and their mentally retarded child as they were walking to a rescue mission for a meal. Defendant asked Olaf where he and his friend could get something to eat. In response Olaf invited them to accompany his family to the rescue mission. After walking three-quarters of a block defendant suddenly grabbed Rita around the neck from behind, pressed a sharp object into her side and started choking her. He then grabbed at her handbag. In the process
he threw her to the ground. As a result, she hit her head on a building, fell and suffered a fractured clavicle.
The grand jury returned a two-count indictment, charging in the first count that defendant "did, in the course of committing a theft, inflict bodily injury upon Mary Rita Anderson contrary to the provisions of N.J.S. 2C:15-1a(1). . . ." [Emphasis supplied.] This charges a second degree robbery. The second count charged that defendant "did commit an aggravated assault upon Mary Rita Anderson by knowingly causing serious bodily injury to said Mary Rita Anderson contrary to the provisions of N.J.S. 2C:12-1(b)(1). . . ." [Emphasis supplied.] This discrepancy in the indictment as to the extent of the bodily injury inflicted caused the problem.
Defendant was convicted on both counts and was sentenced on July 10, 1981. The presentence report contained this statement on the first page:
COUNT ONE. ROBBERY WITH BODILY INJURY, IN VIOLATION N.J.S. 2C:15-1(A)1, FIRST DEGREE.
COUNT TWO. AGGRAVATED ASSAULT IN VIOLATION N.J.S. 2C:12-1(B)(1), SECOND DEGREE.
Prior to sentencing the judge inquired of defendant and his counsel as follows:
THE COURT: Thank you. Are there any additions or corrections you would seek to make to the presentence report?
MR. SACHS: No, Your Honor. Pardon me. I have gone over this with Mr. Crouch, read it out to him aloud, and we have gone over it and there are no additions or corrections.
THE COURT: Mr. Crouch, are there any additions or corrections which you would like to make ...