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State v. Cole

Decided: July 23, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NELSON COLE, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

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

Garibaldi

[120 NJ Page 322] A jury found Nelson Cole guilty of aggravated assault, N.J.S.A. 2C:12-1b(1); kidnapping, N.J.S.A. 2C:13-1b; robbery, N.J.S.A. 2C:15-1; and aggravated sexual assault, 2C:14-2a(3). The trial court did not merge those convictions, and imposed separate sentences for each offense. The sole issue on this appeal is whether defendant's convictions for robbery, aggravated assault, and kidnapping merge with his conviction for aggravated sexual assault. We hold that they do not.

I

At approximately 5:00 p.m. on August 8, 1985, a woman drove to Morgan's tavern in Mine Hill, New Jersey, to sell jewelry to an acquaintance. A man later identified as defendant Nelson Cole, approached the woman and forced his way into the passenger seat of her car. When the woman threatened to scream, Cole grabbed her hair, pulled her head back, and placed a sharp object against her neck. He ordered her to drive to a wooded area near a deserted warehouse.

When they arrived, he momentarily freed her in order to search her glove compartment, at which point the victim began screaming and attempted to escape. Cole grabbed her and began beating her face with his closed fist. She continued to scream. Defendant then grabbed her by her hair and slammed her body against the car. He forced her into the driver's seat and began choking her. He threatened to kill her if she did not stop screaming. Defendant ordered the victim to take off her blouse. When she would not do so, he ripped off her blouse and wiped off the inside of the car with it. He then drove further into the woods.

Cole ordered the victim to get out of the car. She offered him a small change purse, containing one hundred and fifty dollars. He knocked it out of her hands, and later picked it up and put it in his pocket. He ordered the victim to remove a case of jewelry, a bag containing her lunch, and articles of clothing from her car and to carry them further into the woods. Defendant then ordered the victim to take off her pants. When she begged him not to make her take them off, defendant knocked her down again and started to hit her in the face. He then tore off her pants, and raped and sodomized her. The victim screamed from the intense pain. Holding her religious medals, she started to pray. Her actions incensed defendant, and he tore the necklace from her neck and threw it into the woods.

Defendant told the victim to pick up her things and to follow him further into the woods. He then raped and sodomized her a second time. He then requested that the victim perform fellatio. When she tried to escape, defendant knocked her down and beat her. The victim passed out. When she regained consciousness, defendant threw some of her personal items into the woods, ordered her to pick up the purse and jewelry box, and walked her back to the car. He allowed her to put on a pair of pants that she had in the trunk of her car.

Cole ordered the victim to drive and made her promise that she would not tell anyone what had happened. She drove him back to his house, and at approximately 8:00 p.m., almost three hours after her ordeal began, he left her car. The victim returned to Morgan's Tavern and reported the incident to police. Shortly thereafter, the police arrested Nelson Cole.

As a result of Cole's brutal attack, the victim was hospitalized for eight days. Her injuries included abrasions to her entire body, a fractured jaw, and bruised kidneys. She suffered lacerations to her rectum as the result of the forced insertion of a bottle of nail polish. She also sustained a severe cerebral concussion.

At trial, the State produced overwhelming evidence of defendant's guilt. The victim testified and identified Cole as her assailant. The police related that they had found an ice scraper, believed to be the "sharp object" placed at the victim's throat, and $134.00 scattered near the fence where defendant had been captured. Forensic evidence established that the defendant's fingerprints matched those found in the victim's car. Material from the victim's fingernails and car matched fibers from defendant's shirt. Blood consistent with defendant's was found on the victim's shirt.

The jury found defendant guilty of aggravated assault, kidnapping, terroristic threats, aggravated sexual assault, and robbery. The jury acquitted defendant of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Defendant

was sentenced to a custodial term of ten years on the aggravated assault conviction, one-half of which must be served without parole eligibility; a concurrent ten-year term on the kidnapping conviction; a consecutive twenty-year term on the aggravated sexual assault conviction, one-half of which is to be served without parole eligibility; and a consecutive ten-year term on the robbery conviction, five years of which must be served without parole eligibility. The court merged the terroristic threat offense into the aggravated assault and robbery convictions. In sum, defendant was sentenced to forty years with twenty years parole ineligibility. Additionally, the court assessed defendant $100 in penalties payable to the Violent Crimes Compensation Board.

On appeal, defendant argued that his robbery, aggravated assault, and kidnapping convictions are lesser-included offenses of aggravated sexual assault and thus should have merged into his aggravated sexual assault conviction. In rejecting that argument, the Appellate Division found that the facts clearly indicated that defendant engaged in conduct constituting violations of different criminal statutes, thus militating against merger. It explained that N.J.S.A. 2C:14-2a(3) is an "enhancement" feature, reflecting a legislative recognition of an additional threat of harm to the victim, and hence a greater penalty exposure. Moreover, the court reasoned that the survival of only one crime would actually diminish defendant's exposure to punishment. Accordingly, the Appellate Division held that the offenses did not merge, and affirmed defendant's conviction and sentence.

We granted certification, 114 N.J. 508, 555 A.2d 625 (1989), limited to the issue of whether defendant's convictions for robbery, aggravated assault and kidnapping merge with his conviction for aggravated sexual assault.

II

Merger stems from the well-settled principle that "'an accused [who] has committed only one offense * * * cannot be

punished as if for two.'" State v. Miller, 108 N.J. 112, 116, 527 A.2d 1362 (1987) (citing State v. Davis, 68 N.J. 69, 77, 342 A.2d 841 (1975)). See State v. Truglia, 97 N.J. 513, 522, 480 A.2d 912 (1984); State v. Adams, 227 N.J. Super. 51, 58, 545 A.2d 798 (App.Div.), certif. denied, 113 N.J. 642, 552 A.2d 167 (1988); State v. Fraction, 206 N.J. Super. 532, 537, 503 A.2d 336 (App.Div.1985), certif. denied, 104 N.J. 434, 517 A.2d 426 (1986). Although we have not determined whether that prohibition rests on principles of double jeopardy, due process or some other legal tenet, State v. Davis, supra, 68 N.J. at 76, 342 A.2d 841, we acknowledge that merger implicates a defendant's substantive constitutional rights. State v. Miller, supra, 108 N.J. at 116, 527 A.2d 1362.

Beginning with State v. Davis, supra, we have eschewed technisms and inflexibility when resolving merger issues. 68 N.J. at at 81, 342 A.2d 841 (citing State v. Currie, 41 N.J. 531, 539, 197 A.2d 678 (1964)). In Davis, defendant was convicted in a single prosecution for several counts of possession and for distribution of a controlled dangerous substance. He argued that the possession counts should have merged with those involving the sales. We first considered whether the legislature intended to create separate offenses:

We start with the proposition that what is disallowed is double punishment for the same offense. Since it is the legislative branch that defines the unit of prosecution or "offense" and ordains its punishment, we must first determine whether the legislature has in fact undertaken to create separate offenses * * *.

[68 N.J. at 77-78, 342 A.2d 841 (citations omitted).]

Although finding that the history of New Jersey's Controlled Dangerous Substance Act indicated that the Legislature clearly intended possession and distribution to be separate offenses, id. at 78, 342 ...


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