On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-06-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Resubmitted April 20, 2010
Before Judges Axelrad, Parrillo and Lihotz.
On remand from the Supreme Court, we review defendant's argument that the trial court erred in sentencing her by failing to merge offenses following conviction. In our original opinion, we concluded:
Defendant also suggests the convictions for uttering a forged instrument (counts two and five) also merge with the theft by deception charges. We disagree. These were separate offenses and the evidence relied upon by the State to support these convictions differs from the evidence relied upon to prove the thefts. Therefore, the offenses are not subject to merger.
Defendant filed for certification. In an April 8, 2010 order, the Supreme Court granted certification and summarily remanded the matter to this court "to reconsider merging count five with count three, similar to the merger of count four with count three." We conclude the merger of count three and count five is warranted. Accordingly, we amend our prior opinion.
Defendant's convictions resulted from a series of fraudulent transactions whereby she, with the aid of her co-defendants, procured or attempted to procure luxury automobiles using counterfeit forged checks. Following a jury trial, defendant was convicted of third-degree theft of services, N.J.S.A. 2C:20-8(a) and N.J.S.A. 2C:2-6 (count one); seven counts of third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) and N.J.S.A. 2C:2-6 (counts two, four, five, seven, nine, twelve and thirteen); and four counts of second- degree theft by deception, N.J.S.A. 2C:20-4 and N.J.S.A. 2C:2-6 (counts three, six, eight and eleven).
On direct appeal, defendant generally sought to have her convictions for forgery under counts two, four, five, seven and twelve "merged into the convictions for the related theft offenses." The State agreed certain counts for uttering a forged instrument merged into related counts for theft by deception. The State conceded count four merged into count three, count seven merged into count six, count nine merged into count eight, and count twelve merged into count eleven. All agreed the forgery charge set forth in count thirteen had no accompanying theft charge. On direct appeal, we examined whether the forgery offenses set forth in counts two and five merged with any other offenses, concluding they did not. On remand, we again examine the merger of these offenses.
Count three charged defendant with second-degree theft by deception for providing a $25,000 forged check to Quality Lincoln Mercury of Atlantic City in an attempt to purchase a 2003 Lincoln Navigator on October 15, 2002. The same charge also included defendant's successful October 16, 2002 purchase of a 2003 Mercedes-Benz CLK500 from Precision Cars of Atlantic City using a forged $50,000 check. These two events were included as questions 3a and 3b of the jury questionnaire.
Count five of the indictment charged defendant with third-degree uttering a forged instrument in connection with the $50,000 check provided to Precision Cars of Atlantic City. Thus, the conduct in counts three and five encompasses a single crime, as the theft by deception was accomplished by uttering a forged instrument, necessitating the merger of the two offenses. State v. Streater, 233 N.J. Super. 537 (App. Div.), certif. denied, 117 N.J. 667 (1989); State v. Alevras, 213 N.J. Super. 331, 339-43 (App. Div. 1986).
We amend our prior opinion to include the merger of count five with count three and remand this matter to the trial court for ...